CHAPTER 1

INTRODUCTION

“CRITICISM IS NOT SEDITION”

Freedom of speech and expression is one of the most significant and basic right of
democracy. It enables a person to convey his or her views without any fear of repercussion.
This right has been provided under Article 19 (1)(a). The freedom of speech and expression
means the right to speak and express one’s view or opinions by use of words, writings,
printings, through any other medium. It means to express one’s ideas freely, through
communicable medium or visible representation.1 In other words, it means to freely pass on,
circulates one’s opinion or views to another. Freedom of speech and expression is said to be
citizen’s most cherished and sacred right and the priced privilege. 2 In Romesh Thapar V. State
of Madras3 , Chief Justice, Patanjali Sastri, held:

“Freedom of speech and of press lay foundation for all democratic organisations, and is
essential for the proper functioning of the Government.”

Freedom of speech and expression includes freedom of propagating one’s ideas, their
publication and circulation of their ideas. 4 The democratic form of government demands its
citizens’ active and intelligent participation in the affair of the community. The public
discussion with peoples’ participation is a basic feature and rational feature of democracy,
which distinguishes it from the other forms of democracy. 5 It is said to be basis of functioning
of the democracy. 6It is said to be the foundation of democratic society. 7It is said that a right
of one should not hinder the right of another. Therefore, one should use the Freedom of
speech and expression in a way that it should not provoke any person or incite violence in the
State. As a result, this freedom is not absolute and therefore it contains some restrictions.

1 Romesh Thapar v. State of Madras, AIR 1950 SC 124.

2 Union of India v. Motion Picture Association, AIR 1999 SC 2334.
3 Supra note 1.
4 D.R Tuljapurkar v. State of Maharashtra, AIR 2015 SC 2612.
5 S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574.
6 Union of India v. Naveen Jindal, AIR 2004 SC 1559.
7 Supra note 2.
8
Freedom of speech and expression, like all other freedoms, is subject to reasonable
restrictions.8Article

19(2) allows for restrictions in the interest of security and sovereignty of India, public order,
decency or morality in relation to contempt of court, defamation or incitement to an offence.
If these reasonable restrictions were not imposed, it would be highly chaotic for the court to
balance the rights among different individuals.

Without these reasonable restrictions, these rights will lose the value and every individual
will intrude other’s rights. In Mohd. Ajmal Mohd. Amir Kasab V. State of Maharashtra 9 , the
supreme court observed that an action tending to violate another’s person right to life or
putting national security at risk, can never be justified by taking the appeal of freedom of
speech and expression.

Law of Sedition is itself not mentioned in Clause (2) of Article 19. In Kedar Nath v. State of
Bihar10,the SC held that Sec 124A was limited to acts having intention or tendency to create
disorder or disturbance of law and order or incitement to violence and not violative of Art. 19
(1) (a) read with Art. 19 (2).

1.1 Meaning of Sedition

Cambridge Dictionary defines sedition as: “Language or behaviour that is intended to
persuade other people to oppose their government. Sedition is act of defaming the
government or other established and recognised legal authority. Sedition has been derived
from Latin word “seditio” which means discord {Sed means apart and itio means a going}.
Inciting people to revolt or defying the ruling authority is considered as sedition. The usage
of seditious language in writing is known as seditious libel. Someone who participates in
sedition is a seditionist. The law of sedition has become controversially important because of
the carious changes that have taken place in last five decades. Collins Dictionary defines
sedition as: “Speech, writing or behaviour intended to encourage people to fight and oppose
the government.”

8 Clause (2) of Article 19, The Constitution Law of India.

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9 AIR 2012 SC 3565.
10 AIR 1962 SC 955.
9|Page
 11
Sedition has been explained by Lord Fitzgerald in Reg v Alexander Martin Sullivan as:
“Sedition is crime against the society, nearly allied to treason, and it frequently preceded
treason by short intervals. Sedition in itself is 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 people to endeavour the subvert the Government and the laws
of the

Empire. The objects of sedition are to induce discontent and insurrection, and to stir up the
opposition to the government. Sedition has been described as disloyalty in action, and the law
considers as sedition all those practices which have for their object to excite disaffection or
discontent, to create public disturbance, or to lead civil war, or to bring into hatred or
contempt the Sovereign or the Government or the Constitution of the realm and all the
endeavours to promote public disorder.”

12
In Reg v Aldred , Coleridge J held that sedition in ordinary significance denotes to a tumult,
an insurrection, popular commotion or an uproar, it hints to violence or lawlessness in some
form.

Sec 124 A of the Indian Penal Code 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 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.”

Sec 2 (o) of The Unlawful Activities (Prevention) act defines unlawful activity as “Unlawful
activity, in relation to individual or association, means any action taken by individual or
association (whether by committing an act or words, either spoken or written, or by signs or
by visible representation or otherwise) which causes or intended to cause disaffection against
India.”

11 (1868) 11 Cox’s Criminal Cases 44.

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12 (1909) 22 CCLC 1.
10
Therefore, Sedition under Sec 124 A of IPC can be explained as activities, either by words,
deeds or writings which are likely to disturb the tranquillity of the State and lead people to
13
overturn the Government established by law . Sec124 A applies only when the speech or
writing has intention or tendency to cause public disorder or violence 14. Sedition does not
necessarily consist of written matter; it can be evident from wood cut or engraving of some
kind. Comments expressing disapproval of administrative actions and the other actions of the
Government without causing or likely to cause, contempt and hatred does fall in ambit of
sedition. Even the comments expressing disapproval of the measures of the Govt. to obtain
their alteration by using lawful means, that is, without causing or likely to cause hatred and

13 Nazir Khan v. State of Delhi, AIR 2003 SC 4427.

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contempt does not constitute the offence of Sedition. In order to bring the case under this
Section, it is not necessary to prove that attempt of causing disaffection, hatred or contempt
was successful. An attempt is intentional and preparatory action plan with the objective of
causing hatred, contempt and violence. According to the Section, whoever tries to excite or
attempts to excite is supposed to be charged under this Sec 124A, whether the intention has
achieved the result.

1.2 History of the Law of Sedition

The term “sedition “first time appeared in Elizabeth Era, that is in 1590 as the notion of
inciting disaffection by words or by writings. The law was developed in Star Chamber court.
After the dissolution of Star Chamber, the enforcement of the law continued in court of assize
and quarterly sessions. There were three classes of sedition offence, which were commonly
charged: “seditious words” seditious libel “and “seditious conspiracy. England adopted the
sedition from Roman derived civil law, however failed to rely on the jurisprudence.14

Sedition was used since colonial times in India by the Britishers to supress the voices of
nationalist leaders and political dissent. Law of Sedition was enacted by England in 17 th
century, as the lawmakers believed that good opinions of the Government should survive. The
law of sedition was originally drafted by Thomas Macaulay and was originally drafted
Section 113 in Draft Penal Code in1837. But it was omitted from Penal Code enacted in
1860. There was no place for the offence of sedition till 1870. Act of XXVII of 1870
introduced the section 124A. The section enacted at that time follows as:

“124 A. 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, feeling 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 was added, or with the imprisonment for
term which may extend to three years, to which fine may be added, or with fine.”

The present section is the result of several amendments of 1935, 1937, 1947, 1948 & 1950.
The offence is generally known as offence of the sedition and occurs in the Chapter VI of the
Indian Penal Code, under the head “of offences under the state”. After the amendments in a

14 K.A Pandey & B.M Gandhi, Penal Law 183 (Eastern Book Company, New Delhi, 5th edn, 2023).

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row, Sec 124 emerges as we read it today. The offence of sedition against the State is not the
invention of British Government but it has been famous in England for centuries.15

James Stephen has described the offence of Sedition in his commentary on Law of England.
According to him, sedition has been defined as conduct by words, by deeds or by writing,
which has, either as its object or as its natural consequence, the unlawful display of
disaffection with the Government or with existing order of the society. There are five specific
heads of sedition according to the object of the accused. This may be:

1. To excite disaffection against the Government, the King, or Constitution or

against Parliament or the administration of justice
2. To promote, by unlawful means, any alteration in Church or the State
3. To incite disturbance of the peace.
4. To raise discontent among the Kings Subject
5. To excite class hatred.16

When the words are oral, the offence is known as speaking of seditious words, and when
words are written and published, offence is called seditious libel. Where two or more
combine for the seditious intention, the offence is called seditious conspiracy. Criticism on
political matters is not sedition. Candid and honest discussion and debate is permitted in a
democratic country like
India. When the discussion passes the boundary of fair criticism the law only then interferes.17

1.3 History of Freedom of Speech and Expression

In the colonial era, the British tried to supress the voices of Indians through various measures
such as drafting of provisions related to sedition under IPC, Vernacular Press Act 1870,
Seditious Meeting Act, 1907. These restrictions became the driving force for inclusion of
freedom of speech and expression as a fundamental right in the Constitution. 18 On December

15 Supra note 15.

16 Stephen, Commentaries on the Law of the England, Vol IV,1950.
17 Ibid.
18 Rai Bahadur G.K. Roy, Press and Sedition 133 (Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2nd
edn. 2013).

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 1, 1948 and October 17, 1949, the Constituent Assembly debated this right. Article 13 (1) of
the Draft Constitution ran as:

Subject to the other provisions of this Article, all citizens shall have the right:

(a) To freedom of speech and expression

Proviso: Nothing in sub clause (a) of clause (1) of this Article shall affect the
operation of any existing law, or prevent the state from making any law, relating to
libel, slander, defamation, sedition or any other matter which offends against decency
or morality or undermines the security of, or tends to overthrow the State.

Every member of the Constituent Assembly welcomed the inclusion of the right, but few
members were against the proviso.19 They argued that the citizens would be able to express
freely, only in the absence of restrictions. Therefore, putting restrictions on free speech was a
British practice which abolished in free India.21

The concept of the “free speech” was first time appeared in Greece around the end of fifth
century BC. Free speech has been derived from Greek word ‘Parrhesia’ which means to speak
candidly.20 In European history, the concept of free speech was an issue of dispute between
religion and politics. It continued to reform in sixteenth century which led to birth of new
religious tradition of Protestantism.21 King James, I issued a restraint on speech, but it led to a
Declaration of Freedom by the Parliament in 1621. The freedom of speech came to be known
as basic natural right by the end of seventeenth century. After the French Revolution, in 1789,
the freedom of speech was regarded as valuable right.22

19 Aqa Raza, “Freedom of Speech and Expression as a Fundamental Right in India and the test of Constitutional
Regulations: The Constitutional Perspective”, available at
https:/www.researchgate.net/publication/306899769_'Freedom_of_Speech_and_Expression'_as_a_Fundamental
_Right_in_India_and_the_Test_of_Constitutional_Regulations_The_Constitutional_Perspective (last visited on
February 1, 2024). 21 Ibid.
20 Origin of Free Speech, available at: https://www.history.com/topics/united-states-constitution/freedom-
ofspeech (last visited on February 7, 2024).
21 Protestantism is the second largest form of Christianity with collectively between 800 million and more than
900 million adherents worldwide or nearly 40% of all Christians. It originated with the 16th century
reformation, a movement against what its followers perceived to be errors in the Roman Catholic Church. They
emphasize the priesthood of all believers, justification of faith alone rather than also by good works, and the
highest authority of the Bible alone in faith and in morals.
22 The Freedom of Speech, available at: http://law.jrank.org/pages/22450/Freedom-Speech-Origins-Free-
SpeechConcerns.html (last visited on February 18, 2024).

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Few events in history, recognising the importance of free speech:23

❖ In 399 BC, Socrates was tried for refusing to acknowledge gods recognised by the
State. He was accused for propagating anti-democratic views. He was found guilty
and was sentenced to death. Socrates stated, in his reply to jury:

“If you are offered to let me off this time on condition, I am not any longer to speak my
mind… I should say to you, Men of Athens, I shall obey the Gods rather than you.”24

❖ In 1215, Magna Carta was signed, which was regarded as touchstone of liberty in
England.
❖ In 1516, Desiderius Erasmus stated in his book, ‘The Education of Christian Prince’
“in a free state, tongues should be free too”.
❖ In 1644, A pamphlet ‘Aropagitica’ was released by John Milton against restrictions on
free speech. He wrote “He who destroys a good book, kills the reason itself”.
❖ In 1776, Sec 12 of the Virginnia Bill of Rights provided liberty of the press as an
indispensable right.25

❖ In 1789, Declaration of the Rights of Man provided freedom of speech.

❖ In 1791, the first amendment of the US Bill of Rights guaranteed freedom of speech
which prohibited congress from enacting law restricting free speech.28

The importance of freedom of speech and expression has been recognised by various
International and Regional Instruments. Some of them have been mentioned below:

❖ Article 19 of the Universal Declaration of Human Rights provides freedom of opinion

and expression. It states that everyone will have the right to hold opinion without
interference. According to the Art., everyone shall have access and disseminate the
information by any medium.26

23 The Origin of Free Speech, available at: https://www.theguardian.com/media/2006/feb/05/religion.news (last

visited on February 19, 2024).
24 The philosopher Socrates was tried for refusing to recognize the gods recognized by state. He was found
guilty for speaking up his mind and was sentenced to death, available at: http://www.famous-
trials.com/socrates/833home (last visited on February 20, 2024).
25 A.V. Dicey, Introduction to the Study of Law of the Constitution 238ff (Macmillan, New York, 10th
edn.,1959) 28 Supra note 24
26 Article 19 of Universal Declaration of Human Rights: Everyone has the right to freedom of opinion and
expression; this right includes freedom to hold opinions without interference and to seek, receive and impart

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 ❖ Article 9 of the African Charter on Human and People’s Rights provides for freedom
of expression and opinion. According to the Art., everyone is entitled to freedom to
access the information and disseminate according to law.27

❖ Article 19 of International Covenant on civil and political rights, provides expression

of opinion without any interference. However, this freedom is not absolute and is

subject to laws restricting freedom of speech in the interest of maintenance of public

order, health or defamation or morality.28

1.4 Sedition vis a vis Freedom of Speech and Expression

The importance of freedom of speech and expression cannot be understood in country like
India, where Britishers had tried to strangle the freedom of speech and expression in the past.
The Britishers adopted various course of actions to put an end to speech and expressions
resulting in ill will against the Government. One such measure was introduction of law of
sedition in 1870 in Sec 124A of Indian Penal Code.29

The law of sedition was introduced in Colonial India by Britishers to smother political dissent
and to avoid revolt or outbreak against the Govt. The frame of the section 124 A has been
sourced from The Treason Felony Act, 1848 (working in Britain) and the Common Law of
Seditious Libel 30. The surge in incidents of misuse of this law have raised a major concern on
the continuity of the such law in democratic India. 34 Ever since the Constitution came into

information and ideas through any media and regardless of frontiers, available at
https://www.humanrights.com/course/lesson/articles-19-25/read-article-19.html (last visited on February 12,
2024).
27 Article 9 of the African Charter on Human and People’s Rights: (I) Every individual shall have the right to
receive information.
(ii) Every individual shall have the right to express and disseminate his opinions within the law.
28 Article 19 of International Convention on Civil and Political Rights: (1) Everyone shall have the right to hold
opinion without interference
(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and
impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form
of art, or through any other media of his choice.
(3) The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and
responsibilities. It may therefore be subject to certain restrictions, but these shall as be provided by law and are
necessary. (a) For respect of the rights or reputations of others. (b) For the protection of national security or of
public health or morals; available at: https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx (last visited
on January 24, 2024).
29 Shivani Lohiya, Law of Sedition 1(Universal Law Publishing, New Delhi, 2014).
30 W. R. Donogh, A Treatise on the Law of Sedition and Cognate Offences in British India (Thakker, Spink and
Co., Calcutta, 1911). 34 Ibid.

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force, whether the law of sedition is violative of the freedom of speech and expression
enshrined under Art. 19(1) (a) has been controversial issue. 31

After the independence, the members of the Constituent Assembly debated the issue of
including the law of sedition as ground of restricting freedom of speech and expression, as it
was part of the Draft Constitution. After discussions, an amendment was passed in the
Constituent Assembly to drop the sedition from the restrictions to freedom of speech and
expression.32 K.M Munshi, a member of Constituent Assembly, highlighting the change
needed in the Sedition, said:

“A line must be drawn between criticism of government which should be welcome and
incitement which would undermine the security or order on which civilised life is based, or
which is calculated to overthrow the State.”33

Even Jawaharlal Nehru expressed his disliking for Sec 124 in 1951, by stating:

“This section is highly objectionable and obnoxious, and it should have no place for political
and historical reasons”

The statement was made on the occasion of First Amendment to the Constitution 1951, which
widened the scope of restrictions on freedom of speech and expression.38

Earlier, sec 124 A was part of Macaulay’s Draft Penal Code of 1837- 39 as sec 113, but the
section did not find place in final draft of IPC enacted in 1860 34. James F. Stephen stated that
the omission of a provision relating to sedition was result of mistake. 40 Sedition was made
part of the IPC in 1870, when threat was posed by power by overthrowing the Britishers in
India 35 .A. Eden, Secretary of the Judicial Department expressed:

“There can be no doubt that where a population is at once ignorant and fanatical, as are the
Mohammedans of India, seditious teaching is to be made a substantive offence.

31 A.G Noorani, Indian Political Trials 235 (Oxford Publications, New Delhi, 4th edn 2009).
32 History Of Sedition law in India, available at : https://www.newslaundry.com/2016/02/16/a-quick-history-
ofsedition-law-and-why-it-cant-apply-to-jnus-kanhaiya-kumar/(last visited on February 8, 2024).
33 Ibid.
38
Ibid.
34 Kunal Shah,” Journey of Sedition, Section 124A of the Indian Penal Code: has it lived up its life”? available
at: www.manupatra.com>articles>sedition (last visited on January12, 2024). 40 Supra note 30.
35 Supra note 31.

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As a result, IPC was amended to include section 124A of IPC, providing for the offence of
sedition and continued to remain unamended till 1898. 36After the inserting the law of sedition
in IPC, the British tried to strengthen the law by enacting other statutes that cover the
seditious expressions in every form. For example, the Dramatic Performance Act of 1876 was
passed to keep a check on seditious activities in plays and the Vernacular Press Act of 1878
was passed to incite criticism against the British policies in print media. 43

In 1898, an amendment was made in IPC to made in IPC to make changes in sec124A of IPC.
Because of the difficulty faced by the judiciary in interpretating the law of sedition, the
change was necessary. The word “hatred or contempt” followed by Justice Pether Amin in the
Bango

Basi case37 which was the first trial of sedition. Similarly, the interpretation of the word
“disloyalty” can be traced in trial of Tilak 38. Therefore, the present section is result of above
said amendments.

1.5 Scope of the Sedition

The offence of sedition is the result of balancing of two contending forces, that is freedom
and the security. One pole represents the interest of the individual that is free from the
interference of the Government while the other pole represents the interest of politically
organised society. The first and the most fundamental duty of the Government is preservation
of the order. The very foundation of Freedom of Speech and Expression is to maintain the
security of the State. 39 The protection of the freedom of speech and expression should not be
carried out to extend that it disturbs the law and order and causes disorder in public. So, it is
necessary to balance the security of the state as well as freedom of speech and expression.
The balance has been found by enacting sec 124A of the IPC, which defines the offence of
sedition. Therefore, the words, deeds, writings are punishable under Sec 124A only if they
incite violence, or disturb law or create public disorder. The acts or words that have tendency

36 Arvind Ganachari, Combating Terror of Law in Colonial India: The law of Sedition and the Nationalist
Response in Engaging Terror 56 (Brown WalkerPress,2009). 43 Supra note 42.
37 Queen Empress v. Jogendra Chandra Bose, ILR 19 Cal 35.
38 Queen Empress v. Bal Gangadhar Tilak, ILR 22 Bom 112.
39 Dr. Hari Singh Gaur, Penal Law of India 1223 (Law Publishers (India) Pvt. Ltd, Allahabad, 11th edition,
2013). 47 Manubhai Tribhovandas Patel v. State of Gujrat, (1971) 12 Guj L.R 968.

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to create public disorder, they cannot be considered as sedition since sedition is an offence
against the public disorder.47

1.6 Problem profile

As per National Crime Report Bureau reports, Assam recorded the greatest number of
Sedition cases. Out of 475 Sedition cases registered in the country between 2014 and 2021,
Assam accounted for 69 cases. After Assam, the greatest number of cases were recorded in
Haryana, Jharkhand, Karnataka, Andhra Pradesh and Jammu and Kashmir. These six states
accounted for 250 cases, more than half of number of sedition cases recorded in the country.
In 95% of sedition cases has been filed against 405 Indian people over last decade. 40 Out of
all these cases, 23% cases were found to false or mistake of law and 58% cases were closed
due to lack of evidence. Between 2014 -2019, out of 326 sedition cases filed, chargesheet
were filed in 141 cases only. However, it resulted in 6 convictions only. In Kedar Nath v.
State of Bihar, the Hon’ble SC, held the constitutionality of law of sedition by striking
balance between the law

of sedition and the fundamental right of freedom to speech and expression. In a charge
against Arundhati Roy, the lower court did not take into the consideration the decision of the
Supreme Court in Kedar Nath case. Sedition was supposed to be applied in rare instances
where security or sovereignty of the country is threatened. However, it has become handy tool
against political rival to suppress dissent and free speech. When the law of sedition is used
arbitrarily, it defeats the basic purpose of law, i.e. to safeguard the security and sovereignty of
the State.

The definition of “disaffection” has been matter of controversy and there is no universally
accepted definition. Even there is no yardstick to measure the amount of hatred, contempt and
disaffection which constitute the offence of sedition. There should be clear cut distinction
between “disapprobation” and “disaffection” should be made.

In the definition of sedition, the element of men’s rea is missing, resulting in wrong
interpretation of law. Men’s rea or the mental element should be essential element of the

40 Law Commission Report, 1971, available at: http//lawcommissionofindia.nic.in/ 50report43.pdf (last visited
on December 27, 2023).

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offence of sedition and there should be casual linkage between the words and the acts. In
2005, even Australia modified its law of sedition and incorporated the said changes.

1.7 Objectives of the Study

The objective of present research work is directed:

I. To understand the lacunas in the laws of sedition.

II. To analyse the national legal framework of laws of Sedition and compare it
internationally.
III. To understand the historical perspective of laws of Sedition in India.
IV. To analyse the role of judiciary in relation to laws of Sedition in India. V. To
broad recommendations and suggestions on the basis of the study.

1.8 Hypotheses

The present research work aims to focus around the following hypothesis:

1. Often Law of sedition is misused by the authorities in the name of security and the
integrity of the State.
2. Law of Sedition has violated Freedom of Speech and Expression.

1.9 Research Questions

The study aims to focus around the following questions:

1. Whether the definition of Sedition under the Sec 124A of the IPC ,1860, falls within
the legitimate limits of the restrictions that are imposed on the fundamental right of
freedom of speech and expression under the Art. 19(2) of Constitution of the India.

2. Whether the Law of sedition is increasingly being used as political tool to restrict
legitimate dissent against the Government.

3. Whether there is need to reformulate the Law of sedition or to repeal it vis a vis the
freedom of speech and expression.

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1.10 Research Methodology
The researcher follows doctrinal method of research which requires gathering relevant data
from the specified documents and compelling databases in order to analyse the material and
arrive at complete understanding. As part of the study, the international legal framework on
law of sedition followed by different countries would be looked into. Along with them the
legislative rules set forward by the Legislature with reference to sedition would be
specifically looked into to understand as how the law of sedition is been misused by the
political authorities. The study involves an extensive literature in jurisprudence from
secondary sources like books, research papers, academic journals, articles, judicial
judgements, published and unpublished dissertations, thesis and other relevant sources in
order to highlight how the law of sedition is being misused.

1.11 Review of Literature

There is plethora of literature pertaining to issue of misuse of sedition law. Reviewing the
previous literature will give deeper understanding of its misuse. An effort to review scant and
important part of it has been made:

❖ Books:

Dr. Hari Singh Gaur in his book, Penal Law of India49discusses the scope and ambit of the
crime of sedition vis a vis freedom of speech and expression. The offence of sedition is the
result of balancing of two contending forces in freedom and security. One represents the
interest

49

of the individual in maximum right of self-assertion free from government while the other
represents the interest of the politically organised society in self-preservation. In author’s
opinion striking balance between freedom of speech and expression and the security of the
state is necessary.

Sara Sorial in her book, “Sedition and the Advocacy of Violence: Free Speech and Counter
Terrorism “41 , employs the theoretical framework of ‘speech and theory’ to analyse the
current legislative framework and cases pertaining to sedition. In her book she has defined

41 Sara Sorial, Sedition and the Advocacy of Violence: Free Speech and Counter – Terrorism (Routledge Taylor
and Francis Group, 8th edn,2012).

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sedition as the hate speech directed to the state or the sovereign state into hatred, contempt, to
urge disaffection against the Constitution or government elected by the people, or the attempt
to obtain change in the Government by unlawful means.

42
Walter Russel Donogh in his book, “A Treatise on the Law of Sedition” , has discussed in
detail the history of law of sedition in India, according to the author, the term “disaffection”
used in Sec124 A is a state of mind or psychological disposition with well-defined
characteristics. In his opinion, disaffection is both manifold and complex. In his view, the
study is a complex subject and should not be limited to the four corners on the section. It is
through interpretation and application of law as contained in the section that most
comprehensive knowledge is to be obtained.

❖ Articles

B.I Taraporewala in his article43 has widely discussed the concept of freedom of expression
and freedom of dissent. He has stated that one of the most important features of democracy
which distinguishes it from dictatorship or other forms of Govt. is the freedom to express a
view different from that of ruling party or individual.

Anand Mishra in his article44 , is considered view that right to offend is fundamental to our
freedoms and should be included within the parameters of “freedom of expression or freedom
of speech” guaranteed in the Constitution of India. According to author’s view, every new or
revolutionary ideology is considered offensive for the first time. Gandhiji’s idea of
Satyagraha was offensive to Britishers, Galileo’s vision of universe and Darwin’s theory on
evolution of

species was offensive to churches but later on, those ideas only had made the human
civilization to take leap in progress and development.

Nivedita Sakena & Siddharth Srivastava in his article45, has analysed the modern offence of
Sedition and have observed that it is being used as an effective means to restrict free speech,

42 Supra note 4.
43 B.I Taraporewala, “Freedom of Speech and Expression” 128, BLR (1997).
44 Anand Mishra, “Freedom to Express Includes Free Speech with Freedom to Offend” 8 MLJ 63(2011).
45 Nivedita Sakena and Siddhartha Srivastava, “An Analysis of the Modern Offence of Sedition” NUJS Law
Review.

22 | P a g e
and has been used by contemporary government for reasons that are arguably similar to those
used by our former oppressive rules. According to them, various other statues govern the
maintenance of public order and may be invoked to ensure public peace and tranquillity. In
their opinion, the Indian legislature and judiciary should reconsider the existence of
provisions related to sedition in Statute Books.

Priyanka Pareek in her article46 has stated of it is saddening that even after the six decades of
Independence, people of this country cannot express their views opinions, even when it is
their fundamental right to do so, and there have been instances where the freedom has been
curtailed on the grounds of sedition. One of important freedom is the freedom of speech and
expression which by the rampant abuse of law of sedition is being curtailed repeatedly.
According to her, there is dire need of the democratic society to repeal a law that does not
give its citizens a right to express themselves as if the people who are the rulers of a
democratic society are not allowed to voice their opinion, then there cannot exist any bigger
doom for the country who claims to the biggest democracy in the world.

Mila Cerecina in her article47, has sought to assess the effect of the reforms in the Sedition
legislation by the Australian Govt. She observed that there are strong concerns that the
changes in the sedition legislation have significant impact on freedom of speech and
expression. As the sedition legislation has displaced the old law, it has been fulfilled a
reiterative role as boundary marker or filters which functions to reassert the acceptable limits
of inclusion and to reinforce a stable identity and value system. She has observed that even
with the arrival of contradictory democratic influences in Australia, the use of sedition
charges has continued to suppress was at different points in time the most salient threat to
liberal democratic values that is freedom to express.

1.12 Scope of the Study

The scope of the study will be based on to find out the viability of law of sedition in 21 st
century. The study will help to find out the lacunas in the law of sedition and also the problem

46 Priyanka Pareek, Sedition and freedom of Speech, available at; https://racolegal.com>sedition-the-

britishindian-law (last accessed on January 27, 2024).
47 Mila Cerecina, “Semiotics, Constructivism and Sedition” Sydney L.Rev. (2007).

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faced by law agencies in applying the law of sedition without violating the freedom of speech
and expression. The study will analyse Indian law of sedition and law of sedition available in
different countries. The study will also analyse the role of judiciary in reference to law of
sedition in India. The study will give recommendations and suggestion to prevent the misuse
of the law of sedition and lays down a uniform and clear procedure to deal with cases of
sedition so that it does not restricts the freedom of speech and expression.

1.13 Proposed Scheme of the Study

Chapter 1 makes an attempt at defining sedition law, classifying the types of sedition,
summarizing the scope of sedition and highlighting the history of freedom of speech and
expression and history of Law of Sedition, while also listing out the hypothesis taken at the
initiation of the research, the method applied in the conduct of the research, and the
establishing the need for the research.

Chapter 2 shall discuss in detail the historical perspective of Law of Seditionin India. It
discusses the law during the time of British Raj, independence and Post Independence era.

Chapter 3 shall discuss in detail the international and national legal framework of Law of
Sedition. It examines how the Law of Sedition has been proceeded in various countries.

Chapter 4 relates to judicial response to the law of sedition. This chapter discusses in detail
the comprehensive view of judiciary germane to sedition law and the way the courts have
responded to it before and now.

Chapter 5 is the last chapter concluding the research along with suggestions as furthered by
the researcher after having weighted the national / international, legislative/judicial/
administrative reactions in relation to sedition.

CHAPTER-2

LAW OF SEDITION: HISTORICIAL PERSPECTIVE

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2.1 Introduction
One of the most important laws present in any state are the laws relating to self-preservation
or the ones which maintains the stability in the state. In every democratic country, there are
restrictions imposed by the state on the liberties whenever security of the State is threatened.
From the very beginning, sedition has been considered as offence against the State and is
placed under the category of political crime. It is regarded as type of hate speech directed
towards the State or sovereign.48 Many a times, the retention of the law of sedition in the
statute books has been justified on the ground that it acts as weapon in the hands of the
authorities to maintain public order. The interpretation of the law of the sedition has been
matter of controversy in the history.

In recent times, a number of journalists, academics, activists, NGOs and political persons
have demanded the complete abolition of the law of sedition. They claim that there has been
increasing misuse of law across the nation, by the central government and state government,
to restraint freedom of speech and expression, especially press. 49 On the other side, officers of
the Court, particularly, Attorney General KK Venugopal, have claimed that it is important to
retain the law on the statute book, though there can be some legal safeguards to balance the
needs of national security and free speech.

Critics pointed out that the law was introduced by the British raj to supress revolutionary
voices during the freedom movement, and therefore it has no legitimate place on the statute of
an independent India. Some even argued that Britain and other Western democracies have
dropped the charges of the sedition, India should follow the suit. 59

This appeal that some Western Government may have abolished clauses relating to sedition
from their national law is not a valid reason for India to follow the suit. It is true that law of
sedition was introduced to control the voices, writing of freedom fighters and revolutionaries.

However, there have been cases in recent times wherein certain personalities have tried to
spread disaffection against the government, which led to incidents of violence and violent

48 Sarah Sorial, Sedition and the Advocacy of Violence: Free Speech and Counter-Terrorism 3 (Routledge
Taylor and Francis Group, 8th edn,2012).
49 Rijul Singh Uppal, Sedition: Macaulay to Modi 12 (KW Publishers, New Delhi, 2024).
59
Ibid.

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protest50. For understanding the offence of sedition, it is important to discuss the historical
background which is being discussed in this chapter.

2.2 Sedition: Historical Background

Traditionally, the law of sedition had been misused by the Govt. to perform its functions.
Govt. have used all kinds of measures to suppress the dissent and prevent embarrassment
from its failure by diverting attention of the public and mangling basic fundamental right such
as freedom of speech and expression.51

The offence of sedition is placed by the various countries under the category of crimes against
the state.52 History has observed that totalitarian governments and the democratic
governments have made use of this provision against the citizens, during political and
economic tension. In developed countries, there are rare cases of prosecutions under the law
of sedition after the World War II and the Cold War. While in developing countries, there is
increase in number of prosecutions under the law of sedition because of unstable economic
conditions. And growing dissent.53

In the course of Roman Empire, both the person and the authority of the emperor were
protected. At that time the term ‘Treason’ and ‘sedition’ were substitutable. After the fall of
Rome, the law of Treason or Seditious words came to be prominent in feudal and expanded to
include assistance of betraying one’s Lord. 54 After the fall of Roman Empire, the Roman legal
doctrines were reconfined by the Western Europe at the end of 11 th century. Absolute power
was with monarchs, who adopted the roman concept for the offences against the State. 55 The
offence of sedition was unknown under common law. In sixteenth century, during the reign of
Tudor, the offence of sedition came to be known as political crime. Many of its development
took place by legislative interference as well as change in the public sentiments over a period

of time. 66

50 Supra note 56.

51 Michael Head, Crimes Against the State: From Treason to Terrorism 1 (Ashgate Publishing Company, United
Kingdom, 9th edn 2011).
52 Ibid.
53 Supra note 32 at 36.
54 Supra note 61 at 24.
55 R. Wacks, Understanding Jurisprudence 19 (Oxford University Press, London, 2009).
66
James Stephen, History of Criminal Law of England 300 (Macmillan, London, 1883).

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2.3 Sedition in India
The history and the interpretation of law of sedition in India is looked from two different
perspective, i.e. from judicial and political. The Charter Act of 1833, created a legislative
council to handle civil, defines and commercial interests of East India Company. Lord
Thomas Macaulay and Law Commission took responsibility to draft the Criminal Penal
Code, in furtherance to have a uniform system of justice applicable all across the Indian
British Empire. The Law Commission was doubtful of the competence of the Indian
56

Legislature to enact a law of sedition. So, the Law Commission suggested that the legislature
should draft such laws and should be made applicable to the whole Empire. 68The Charter Act
of 1833 contained a restriction under Sec 43:

“The Governor General -in – Council shall not have the power to make laws or regulation
which shall affect the prerogative of the Crown. And the authority of the Parliament, or the
Constitution of the United Kingdom of Great Britain and Ireland, whereof may depend in the
any degree the allegiance of any person to the Crown of the UK, or the sovereignty or
Dominion of the said Crown over any part of the said territories.”57

The Law Commission proposed sec 113 which punished excitement of disaffection against

the Government established by the law in the territories of East India Company.

By the mid-19th century, the British managed to consolidate position in India and had to face
their challenges in the form of revolt of 1857. 58 The Indian Penal Code, 1860 was enacted by
the Britishers to tackle the resentment of the press.71 Rajiv Dhawan, Commissioner of
International Commission of Jurist, said: “The Indian Penal Code, 1860, was a
comprehensive code. Not all the provisions were directed against the free speech but it could
be used to suppress it”59

The provision of Law of sedition was part of Draft Penal Code as one of the clauses in sec
113 but it had no place in final code which was enacted in 1860. 73 Sec 113 punished attempts
to

56 Cheong-Wing Chan, Barry Wright, et.al. (eds.), Macaulay and the Indian Penal Code: Legacies and
Modern Challenges of Criminal Law Reform 1 (Ashgate, United Kingdom, 2011). 68 Supra note 60 at 12.
57 Ibid.
58 Supra note 21 at 3.
71
Ibid.
59 S. Naved, Sedition, 2010, available at: https://kafila.online/2010/12/07/sedition-law-india-dissent-
historycourts/ (last visited on February 8, 2024). 73 Supra note 61 at 1-2.

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excite the feelings of disaffection against the Govt. The provision made a distinction between
the disaffection and the disapprobation. According to the sec, making of any comment on the
measures of the Govt. with an objective to seek changes in the measures was not considered
as sedition.60 While introducing a bill for inclusion of the offence of sedition, Sir James
mentioned that the reason of its omission was a mistake. 61 Even Governor Lord Cannings was
against the inclusion of the offence of sedition as its restriction on freedom of speech. Finally,
sedition was made a part of IPC in 1870.

The Act XXVII of 1870 contained in Sec V of the IPC defined sedition. Chapter V dealt with
abetment and was applicable to the offence of sedition. The definition of the offence of
sedition in the India was based on three England laws: The Treason Felony Act, 1848,
Seditious libel and the seditious words. 62

According to the definition of the sedition in India, criticism of Govt. was allowed under one
condition that was, obedience to the lawful authority of the Government but the way
obedience was to be judged was not mentioned. 63
Though the definition was ambiguous, it
was more precise and less obscure. The words like ‘disaffection’ and ‘disapprobation’ were
different from one and another and an attempt to incite ill will feelings towards the Govt. was
held not to be same as disapprobation. 64
The need for the amendment in the provision was
felt after the sedition charges were charged against the editors of the Nationalist newspaper.
However, it was realized that the explanation to the offence was causing problems about the
nature of the law.65

The provision of the law of sedition is based on the principle that every State, whatever is the
form of Govt. has to be armed with the power to criminalize those who by their conduct risk
the safety and stability of the State. 66 If the Govt. established by the law is overthrown, the
very existence of the State will be at risk. Therefore, the law of sedition has been placed
60 Supra note 73.
61 Supra note 60 at 10.
62 Ibid.
63 Centre for the Study of Social Exclusion and Inclusive Policy, “Sedition Laws and Death of Free Speech in
India” (National Law School of India University, Bangalore and Alternative Law Forum, Bangalore, February
2011) available at: http://www.nls.ac.in/resources/csseip/files/Seditionlaws_cover_final.pdf> (last visited on
October 10, 2017).
64 Queen Empress v. Jogendra Chandra Bose, ILR 19 Cal 35.
65 Ujjwal Kumar Singh, Political Prisoners in India 24 (Oxford University Press, New Delhi,1998).
66 K.D. Gaur, The Indian Penal Code 225 (Universal Law Publishing Co. Pvt. Ltd., New Delhi, 4th edn., 2009).
81
Ibid.

28 | P a g e
under the Chapter VI under the category offences against the State. 81 There was another
debate to repeal
the Vernacular Press Act, 1878. The Act was introduced in the pre censorship of newspaper by

the Govt. 67
The Britishers sensed the discontentment raised by the Vernacular Press Act, as
result the repeal of the Act was desired. In this debate, it was also recommended that the Sec
124 A of the IPC needs to be amended to make it effective. However, the Govt. feared that if
Vernacular Press Ac, 1878 is repealed, then a lacuna would be created to contain seditious
expressions by the Press. The Govt. decided to amend the sedition provision and repeal the
Vernacular Press Act, 1878. The Govt. recommended that when there is no intention to resist
and subvert the Government will not be considered as sedition. The proposed amendment was
introduced because sedition charges were imposed on number of newspapers, where the
Govt. failed to prove the charges in the trial. 68

After the enactment of the law of sedition in 1870, the first case was Queen Empress v.
Jogendra Chander Bose 69, known as ‘Bango Basi’ case. The articles critical to the Age of
Consent Bill70 was published in newspaper. The defence argued that the article was within the
permitted limit of criticism and there was nothing to rebellion. On the other side, it was
contended that the language used in the article was seditious. The jury failed to reach a
consensus, so the accused was discharged. Although the case was sent for retrial but the
accused issued an apology and proceedings were dropped.71

In 1898, an amendment was proposed to amend the existing provision on sedition. Mr

Chalmers, who was in charge of the Bill felt that the law was not clearly defined and would
benefit with less equivocal terms. It was viewed by the members that plea to violence would
not be considered as important element to determine the guilt of the accused under the
provision of sedition.72

67 Supra note 70.

68 Supra note 80 at 70.
69 ILR (1892) Cal 35.
70 Age of Consent Bill was a legislation enacted in British India on March 19, 1891. This legislation raised the
age of consent for sexual intercourse for girls, married or unmarried.
71 Supra note 61 at 38-39.
72 Supra note 100 at 146.

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With the Amendment Act IV of 1898, 73 ‘hatred and ‘contempt’ were added and the word
‘disaffection’ included disloyalty as well as feelings of enmity. Further Sec 153 A was
included in IPC criminalising promotion of feelings of hatred and ill will between the
different classes of people in India.89

2.3.1 Sedition in British Raj

Law of sedition was initially was placed in section 113, when Thomos Babington Macaulay
drafted Penal Code in 1837. For some unknown reasons, it was omitted from actual Code. On
the suggestion of James Stephen, sec 124 A was finally added in the code by IPC Amendment
Act of 1870.74

British government of India feared Khilafat movement in Indian subcontinent would wage a
war against them specially after the suppression of Wahabi movement, the need for such law
was felt. As a result, British raj introduced this section under the title “Exciting
Disaffection”.75Stephen indicated that sedition was being included in IPC because of fears of
Wahabi conspiracy in British Raj. The Wahabi movement became active in the 1830s and
preached holy war against Christians in India, it played a significant but indirect role during
the events of 1857. Originally the Wahabi movement began in Saudi Arabia under the
leadership of Muhammad bin Abdul Wahab and Amir Mohammed bin Saud, founder of the
House of Saud.76Therefore, James Stephen introduced sedition as offence under sec 124 A
through Special Act XXVII OF 1870. Stephen’s version of sedition of 1870s was amended in
1898 and it was somewhat similar to present section. 77

Many nationalist leaders faced sedition charges, most notably, Annie Basant, Bal Gangadhar
Tilak, Mahatma Gandhi, Jawaharlal Nehru and Maulana Abdul Kalam Azad. Father of nation,
Mahatma Gandhi faced sedition charges for writing articles in his journal “Young India”

73 The Indian Penal Code, 1860 (Act. No IV of 1898).

89
Supra note 77.
74 Supra note 80.
75 Supra note 58.
76 Ibid.
77 Ibid.

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containing sensitive content. On 10 March, 1922 Gandhi was arrested in Ahmedabad and was
released on 4 February, 1924.78

Three landmark events in pre independence era of India are:

❖ Queen Empress v. Jogendra Bose 95

The first sedition trial in India was held in 1891. The British Government enacted Age of
Consent Act in march 1891, which amended Sec 375 and raised the age of consent from 10 to
12 years. The law was religion neutral and applied to all communities in British India. A
popular

Bengali weekly, published five articles criticising the Age of Consent Act. A sedition case
under sec 124A was filed in Calculate High Court against Jogendra Chunder Bose.

The then Chief Justice of the Calcutta High Court, Sir Comer Petheram held that
“Disaffection means a feeling contrary to affection, in other words hatred or contempt.
Disapprobation means to simply disapprove. It is sufficient for the purpose 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 the intention to
create such feeling.” A retrial was ordered and the accused was released on bail. Later, the
case was withdrawn after
Bose issued an apology.79

❖ Queen Empress v. Bal Gangadhar Tilak 80

Tilak was first national leader to be tried under sedition law. in 1881, Tilak launched two
weekly periodicals: Kesari in Marathi language and Mahratta in English language. In 1897,
the Bombay government directed its Oriental translator, to file a case against Tilak as
publisher, proprietor and editor of Kesari and Keshav Mahadev. in his capacity as printer for
publishing an article in his newspaper of great Shivaji to incite hatred against British rule.
Justice Arthur Strachey presided over the trial. Tilak was represented by two Calcutta based

78 Supra note 93 at 58.

95
ILR 19 Cal 35.
79 Supra note 61 at 38-39.
80 (1898) ILR 22 Bom 112.
98
Supra note 79.

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English Barrister. The jury found Tilak guilty of sedition. Keshav Mahadev Bal, printer of
Kesari was acquitted. Tilak was sentenced to eighteen months of rigorous imprisonment. This
judgement led to the 1898 amendment to sec 124 An IPC wherein the explanation defined
“disaffection” to include disloyalty and feeling of enmity.98

❖ The 1898 Amendment

Sec 124 A was rewritten in 1898 as Legislative Council felt that this law had not been drafted
clearly by James Stephen. Some members objected the bill. The Congress president, P.
Ananda Charlu in 1891 warned that words like hatred, contempt or enmity were vague,
misleading and virtually restraining all the democratic discourse.

The bill came law on 18 February 1898 and incorporating pre 1832 English law of seditious
libel. Words like hatred, contempt, disloyalty or enmity defined the sedition law in India and

included exciting disaffection against the government. Disaffection included disloyalty and all
feelings of enmity.81

2.3.2 Sedition in Post Independence Era

After independence, sedition was dropped from the Indian Constitution in 1948. KN Munshi
moved an amendment to drop the word “sedition” from the draft Constitution. Finally on 26
November 1949, the word “sedition” was removed from the constitution but it continued to
stay in Indian Penal Code. In June 1951, Jawaharlal Nehru introduced the first amendment
bill. The bill amended the Article 19(2) and incorporated three restrictions on freedom to
speech and expression:

1. Public order
2. Friendly relation with foreign state
3. Incitement to an offence

Because of certain judgements of Supreme Court and the Punjab, Patna and Madras High
Court made it difficult for the government to control the hate speech or speech which

81 Supra note 58.

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promoted enmity among different groups, Prime Minister Jawaharlal Nehru introduced the
First Amendment Bill.82

During the introduction of First Amendment, Pandit Jawaharlal Nehru quoted that “Now so
far, I am worried that concerned section i.e., sec124 A of Indian Penal Code is highly
obnoxious and controversial and it should have no place for the practical as well as historical
reasons. The sooner we are liberated of it sooner it will be better. There are other ways in
which we can deal with this matter.” 83

In case of Kedar Nath V. State of Bihar84 in 1962, the Supreme Court upheld the constitutional
validity of the Sec 124A. Justice P. B Sinha interpretated that section 124 A would apply only
if there is incitement to violence or an attempt to overthrow the democratic elected
government through violence.

In 1973, Indira Gandhi Govt. made sedition a cognisable offence for the first time. It means
police can arrest an individual without a police warrant. The new Code of Criminal Procedure
came into force in 1974 and repealed the colonial era Code of Criminal Procedure of 1898.

On 11 May 2022, in the case of SG Vombatkere v. Union of India 85

, the SC of India
suspended the colonial era law. The ruling does not overturn the sedition law. However, this
law has only been put on alternation and the Supreme Court of India emphasised on re-
examination of sec 124A. Due to this, people who were jailed under this law became eligible
for bail. No more cases can be registered until the review by the Govt. is completed.

In May 2023, Minister Amit Shah introduced criminal law in parliament and turned sedition
into treason. Any activity will be considered treason if it is intended against the unity,
integrity and sovereignty of the nation.86

82 Ibid.
83 Supra note 99.
84 AIR 1962 SC 955.
85 AIR 2022 7 SCC 433
86 Supra note 93

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2.4 Conclusion
In Pre-Independence Era, the Law of Sedition has been used by the authorities to suppress
political dissent. However, there has been surge in the demand of repealing such draconian
law because of its increasing misuse. There are proposals from different sections of the
society to repeal such law as this infringes the freedom of speech and expression. The legal
regime of sedition both at national and international level have been discussed in succeeding
chapter.

CHAPTER 3

INTERNATIONAL AND NATIONAL LEGAL

FRAMEWORK VIS A VIS LAW OF SEDITION

The Sedition law is a debatable law that prohibit seditious form of speech and expression and
have a long history of criticism and debate. In developing and developed nations, that is, U.K,
Australia have revoked the Law of Sedition. While some countries, still believe that it helps
in maintaining peace and law and order within the State.

34 | P a g e
According to the International Human Rights and Amnesty International, the law of sedition
should be revoked and more emphasis should be given to freedom of speech and expression.
Being a democratic nation, more value should be given to opinion of the public.

The sharp rise in sedition cases in democratic country has once again pointed out whether this
section needs to disposed off. Therefore, the question of whether sedition should be repealed
or revoke is most importantly based on countries legal system. If a country decides the
retention of sedition law, it must balance the freedom of speech and expression.

3.1 International Legal Framework

Various nations understand and apply the law of sedition differently as mentioned below. A
few of the cases have been discussed.

3.1.1 United States of America

In USA, sedition was made punishable offence through the Sedition Act of 1798. The Act sets
out punishment of up to 2 years for imprisonment for opposing or resisting any law of US or
for writing or publishing false writing about President, Vice President or about US Congress.
The Act was repealed in 1821.87

In 1918, Sedition Act was again enacted by US Congress in First World War to protect the
American’s interest. The Act made disloyalty among military personnel, treason to
government

or the Constitution or the armed forces or the flag as unlawful. In spite of that, the US
Supreme Court toppled this Act.88

In 1940, Smith Act was passed which made it federal crime to teach the desirability of
overthrowing the US elected government. This Act also known as Alien Registration Act. 89

87 T. Tedford and D. Herbeck, Freedom of speech in United States 25 (Strata Publishing Co. USA, 5th edn.,
2005).
88 B.A. Ragsdale, The Sedition Act Trials 1-3 (Federal Judicial Centre, Federal Judicial History office, USA,
2005)
89 The Alien and Sedition Act, available at:
https://www.napoleonseries.org/research/government/legislation/c_alien.html (last visited on February 11,2024).
108
395 U.S 444(1969).

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In 1969, in Brandenburg v. Ohio,108 the U.S Supreme Court for determination of when free
speech may be restricted, created a two-part test for determination. The test intended that the
government may prohibit speech which favoured the use of force or crime if speech satisfies
the both elements: 1) the speech is directed to incite or produce lawless action, and 2) the
speech is likely to incite or produce such action. Since then, it is known as Brandenburg Test.

Currently, treason and seditious conspiracy considered crime under the Title 18, Chapter 115,
which provides for twenty-one years of imprisonment or fine or both for seditious conspiracy
to overthrow the Government of the U.S. Sec 2384 under Title 18 of US Code provides
punishment of not more than twenty years of imprisonment or fine or both if there is
conspiracy between two or more persons to destroy or overthrow the established Govt. 90 Sec
238591 punishes any advocacy, teaching, excitement to overthrow the Govt. of U.S by force or
by violence, publishes any seditious material to cause destruction or overthrow the
established Govt. in U.S. The offence under this sec is punishable with imprisonment of not
more than twenty years and there is bar on public employment of the convict for period of
five years from the date of his conviction. The sedition law has not been declared
unconstitutional by the SC, instead many a times, a new standard has been set up to legitimize
restraints on free speech. But, with the First Amendment and the Judicial Interference attacks
on freedom of speech have

declined. The last conviction under the offence of sedition in U.S was in 90’s and there was
less usage of this law in twenty first century. However, the existence of this provision in the
code has been matter of concern in context to freedom of speech.

90 Title 18 U.S.C Section 2384: If two or more persons in any State or Territory, or in any place subject to the
jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the
United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent,
hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property
of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not
more than twenty years, or both.
91 Title 18 U.S.C. 2385: Whoever knowingly or wilfully advocates, abets, advises, or teaches the duty,
necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the
government of any State, Territory, District or Possession thereof, or the government of any political subdivision
therein, by force or violence or Whoever, with intent to cause the overthrow or destruction of any such
government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or
printed matter, shall be fined under this title or imprisoned not more than twenty years, or both, and shall be
ineligible for employment by the United States or any department or agency thereof, for the five years next
following his conviction.

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3.1.2 United Kingdom

In 13th century, sedition was used as tool by Britain to suppress the freedom of printing press
and ability to criticise the King. The Sedition Act of 1661 punished all those who wrote,
printed or spoke against the King.92

The basic purpose of this Act was to safeguard the faith that common man had in the
government and to refrain from breaching the peace in the society. The sedition originated
from common law principle of seditious libel that grew from oldest law of British, Statute of
Westminster.112

The Law of Sedition was removed from the U.S statute through Coroners and Justice Act by
abolishing sedition and seditious libel, defamatory libel as well as obscene libel in 2009. This
was recommended by the UK Law Commission in 1977 in working paper no. 72 titled as
Codification of the Criminal Law: Treason, Sedition and Allied Offence. 93 The foreign and
commonwealth office criticised the existence of the seditious libel and criminal libel in statute
books, in annual report on human rights which was launched in 2009. The report said:

“On the national level, some countries exploit criminal and civil law to silence the legitimate
debates whether through accusations of sedition, libel, defamation or violation of laws on tax
or national security.”94

Therefore, the Law Commission report believed that state may perhaps swear upon various
other offences which bring sufficient penalties and punishment. Therefore, there was no need
for law of sedition in criminal code.

3.1.3 Australia

The Crimes Act of 1920 included sedition as crime. In 1984, Hope Commission was
constituted and reviewed the offence of sedition. The Hope Commission observed that any
statement

92 English Law, available at: https://en.wikipedia.org/wiki/English_law (last visited on February 20, 2024). 112
Ibid.
93 Abolition of Sedition, available at: https://www.englishpen.org/wp
content/uploads/2015/09/seditious_libel_july09.pdf (last visited on February23, 2024).
94 Foreign and Commonwealth Office Annual Report: Human Rights-2008 (United Kingdom Foreign and
Commonwealth Office, 2009).

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regarding political faith should not be penalised. The Commission recommended that
definition of sedition should align with the definition given by commonwealth. It suggested
that the seditious intention in relation to Queen’s dominion should be removed from the
definition of the seditious intention under the Crimes Act. The Australian Govt. accepted the
recommendation and amended the Crimes Act in 1986. Seditious intention to excite
disaffection against the Queen’s dominion were removed and the burden of proving seditious
intention was placed under Sec 24C & Sec 24D. 115

In 2005, the Govt. made its mind to amend the Sedition provision and attune it with counter
terrorism provisions. Some of the changes made in sedition provision were in tune with Gibbs
Committee. Sedition was added into Anti -Terrorism Act as an offence in Schedule 7 in 2005,
repealing the old provisions contained in Sec 24C & Sec 24D. Article 80.2 and Article 80.3 of
the Criminal Code were added as defences to Sedition. The main reason behind incorporating
new provisions was too silent the voices against the military operations in Afghanistan, Iraq
and Indonesia.116

The National Security Legislation Amendment Bill (2010) accepted the recommendations of
Australian Law Reform Commission of removing the term “sedition” and replacing it with
phrase “urging violence” and clarifying the elements of the offences. With the substitution, it
was given a new appearance within the old scope of criminality.117

3.1.4 Canada

In Canada, sedition is part of Criminal Code under the category of offences against the public
order under Part II. Sec 59 of the Criminal Code lays down sedition as : 1) Sedition words –
that expresses a seditious intention, 2) Seditious libel- libel that expresses the seditious
intention, 3) Seditious Conspiracy – an agreement between 2 or more people to carry out
seditious intention, 4) Seditious Intention – everyone shall presume to have seditious
intention who a) teaches or advocates , OR b) publishes or circulates any writing , use it
without the authority of law for accomplishing a governmental change in Canada. 118Under the
Sec 61 , the

115
Australian Law Reforms Commission, Review of Sedition Laws, Discussion Paper 71, May 2006.

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116
Michael Head, Crimes Against the State: From Treason to Terrorism 28 (Ashgate Publishing Company, 2011).
117
H. Gibbs, R Wattson and A Menzies, Review of Commonwealth Criminal Law: Fifth Interim Report 307
(1991).
118
Section 59 of the Criminal Code:
(1) Seditious words are words that express a seditious intention.
(2) A seditious libel is a libel that express a seditious intention.
(3) A seditious conspiracy is an agreement between two or more persons to carry out a seditious intention.
Code specifies the punishment for seditious offences , i.e. imprisonment for the term not
exceeding fourteen years.119

The law of sedition suffers from various ambiguities. The offence of sedition requires
seditious intention but the term has not been defined under the section 60. So, while
interpretating the sedition provisions, the reference to common law is necessary for the
meaning of seditious intention and it may not be in tune with modern domestic setup. 120

The Law Reform Commission expressed its view to remove the law. The Commission
pointed out that sedition provision was included in statute books when the Govt. was
considered superior to people. Now. the Govt. is considered as servant of the common people
and it is necessary for the healthy democracy that ideas, opinions, is allowed to flow freely
without any unnecessary involvement of the Govt. Canada was the first country where the
scope of the sedition was narrowed down by the SC.121

3.1.5 New Zealand

The definition of sedition in New Zealand resembles with that of England. In early twentieth
century, sedition was commonly used. Before repealing the law of sedition, the offences
relating to sedition were placed in sec 81-85. 122 Section 81 (1) provided the definition of the
seditious intention. According to the above section, any intention to bring into hatred or
contempt against Her Majesty or the Govt. of New Zealand or to cause disaffection is said to
seditious intention.123

(4) Seditious intention without limiting the generality of the meaning of expression 'seditious intention' everyone
shall be presumed to have a seditious intention who (a) Teaches or advocates or(b) Publishes or circulates
writing that advocates the use, without the authority of law, of force as a means of accomplishing a
governmental change within Canada.
119
Section 61 of the Criminal Code: Punishment of Seditious Offences: Everyone who (a)
speaks seditious words;
(b) publishes a seditious libel, or (c) is a party to a seditious conspiracy, is guilty
of an indictable offence and is liable to imprisonment for fourteen years”.

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120
Law Reform Commission of Canada, Department of Justice, Canada, Crimes Against the State, Working
Paper 49, 1986.
121
Boucher v. King, (1950) 1 DLR 657.
122
G. Palmer, New Zealand’s Constitution in Crisis 67 (John McIndoe, Dunedin, 1992).
123
Section 81(1) of the Crimes Act, 1961: Sedition Intention – an intention to bring
(a) To bring into hatred or contempt, or to excite disaffection against, Her Majesty or the government of New
Zealand or the administration of justice; or
(b) To incite public or any persons or any class of persons to attempt to procure otherwise than by lawful means
the alteration of any matter affecting the Constitution of Laws, or government of New Zealand; or
(c) To incite, procure, or encourage violence, lawlessness, or disorder; or
(d) To incite, procure, or encourage the commission of any offence that is prejudicial to the public safety or to
the maintenance of public order; or
Sec 82 provided punishment of max. 2 years for seditious conspiracy to fulfil the acts
mentioned in previous section.124 Sec 83 provided punishment of not more than 2 years for
publishing seditious statement revealing seditious intention. 125 Sec 84 provided imprisonment
of 2 years for printing, publishing, disseminating possessing for sale or delivery or
importation of document or statement containing seditious content.126

On 8 June 2006, first sedition trial was held in New Zealand in which Tim Selymn was
convicted. On 7 May 2007, New Zealand followed the recommendation of New Zealand Law
Commission and as result, repealed the sedition law.127

3.1.6 Spain

Formerly, the Spain’s Criminal Code defines sedition under Article 544. For those who
incited, sustained or directed sedition, the law provides punishment of 8-10 years under the
code. For those who are in position of authority, it can rise to 10-15 years.

In October 2019, Spain’s Supreme Court sentenced nine separatist leaders to nine and thirteen
years in prison for the failed to offer regional independence in 2017 with sedition.

However, in Dec 2022, Spanish Parliament reformed the criminal code which scrapped the
crime of sedition and replaced it with offence of public disorder. The punishment for the
offence has been reduced to max. imprisonment of three years. 128

3.2 National Legal Framework of Sedition

The legal framework in relation to sedition is fundamentally governed by Sec 124 A which
defines the term “sedition” and covers punishment of Sedition. The term “sedition” does not

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(e) To excite such hostility or ill will between different classes or persons as may endanger the public safety. 124
Section 82 of the Crimes Act, 1961: An offence under section 81(2) shall be punished with an imprisonment of
two years
125
Section 83 of the Crimes Act, 1961: publication of any statement revealing seditious intention shall be
punished with a maximum imprisonment of two years.
126
Section 84 of the Crimes Act, 1961: Term of imprisonment not exceeding two years for everyone who
with a seditious intention:
(a) Prints, publishes, or sells; or
(b) Distributes or delivers to the public or to any person; or
(c) Causes or permits to be printed, published or sold, or to be distributed or delivered; or
(d) Has in his possession for sale, or for distribution or delivery
(e) Brings or causes to be brought or sent into New Zealand - any document, statement, advertisement or other
matter that exposes any seditious intention.
127
Compare B. Saul, “Speaking of Terror: Criminalizing Incitement to Violence” 28 UNSWLJ, 868, 884 (2005).
128
Supra note 58.
find place in the Sec 124 but it finds its place in marginal note. 95 It is covered under the
heading of offences against the State, under Chapter VI.

It was introduced in IPC by James Stephen. Provision of sec 124 A is based on England’s
Common Law of sedition. But the offence of sedition has to be perceived in spirit of
Constitution of India and not as formerly done in imperial rule.96

3.2.1 Sec 124A of Indian Penal Code

When a person by words, either spoken or written, or by signs or by visible representation,

brings or attempts to bring hatred or contempt towards the government or incite or attempts to
incite disaffection towards the Govt is defined as Sedition. The maximum punishment
prescribed for the crime of sedition is imprisonment for life, along with fine. Disturbance of
public disorder is essential ingredient of the offence. In our legal system, exciting or
attempting to excite disaffection, hatred is punishable, irrespective of whether or not disorder
follows has been dominant.97

The term “sedition” does not occur in the sectionbut only found in the marginal note of the
section. It merely provides the name by which crime defined will be known. The Sec124A
defines the offence of sedition and prescribes the punishment for the same. In defining the
offence of sedition, it uses the words like hatred, contempt, disaffection whose meaning needs

95 Aishwarya Narayanan, “A Theoretical Analysis of Law of Sedition in India”4 CULJ 87-101 (2015).
96 Supra note 32.
97 Ibid.

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 98
to be investigated. The abstract rule sheds no light on the meaning. Understanding the
terms used in the Section:

❖ Whoever

The term includes the writer, printer, editor, publisher and the editor. A person who has used
the article or writing for the purpose of exciting disaffection towards the Govt. established by
the law is also be included. A person is liable for everything that appears in his paper.
Because a person is a printer, he will not be considered as less liable.99

❖ Hatred and Contempt

The words “hatred and contempt” are words of English law and bears same meaning in
English Law. Hatred and Contempt does not mean the same thing however, they have so
much in common. They can be easily differentiated. Hatred implies ill will and contempt
implies low opinion.100 Hatred and contempt are state of mind in relation to an object. Hatred
to the Government does not mean hatred of any composing members. Such hatred expressed
101
in words, amounts to defamation and it is not sedition. The character of the speech or
writing is judged as whole. so, if on reading through speech, it appears to be that feelings of
hatred, contempt and disaffection would be excited towards the Government, then it is
justified that speech was delivered with that intent and there was attempt to create the feelings
against the law. If speech is calculated to incite feeling of hatred, contempt against the
Government, is therefore, punishable under the Sec 124A. 102

❖ Disaffection

Disaffection has not been defined in this section. It simply states that disaffection includes
disloyalty and enmity. Disaffection implies to political discontent. Disaffection with the
Government means to loss the faith and confidence in Genuity. According to Petheram CJ,
“disaffection means feeling contrary to affection, in other words, dislike or hatred.

98 Ibid.
99 Supra note 33.
100 Ratanlal & Dhirajlal, Law of Crimes 569 (Lexis Nexis, New Delhi, Vol I, 26th edn., 2007).
101 Annie Basant v. Advocate General of Madras, AIR SC 1919.
102 Supra note 46.

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 Disapprobation means to simply disapprove. It is possible to disapprove men’s sentiment or
103
actions and still like him". In Tilak’s case, Strachey J. has defined the disaffection as
hatred, enmity, dislike, contempt, and every other form of ill will to the Government. After
the tilak case, it was in 1898 that Sec 124 A was amended and words like “hatred “or
104
“contempt” were included in the section. The word “disaffection” implies to discontent of
the body of the men and not only to a person or two. Disaffection can be caused by thousand
ways. A poem, a drama, a philosophical discussion or historical discussion, can be used for
motive of causing disaffection. When seditious writing remains unpublished, the author will
not liable for the offence of sedition. Publication of some kind is essential.105

The section lays down that the preachers of sedition have to suffer the penalty. Whether they
incite hatred, discontent or attempt to incite hatred or contempt, in every case they are equally

guilty. Their criminality does not stop, if they fail to excite disaffection. The same speech or
writing can produce different feelings in different persons. At the same time, one may feel
hatred, other may feel contempt and third may feel disaffection by the same speech. It is even
possible that one may feel hatred, contempt and disaffection in the sense the words are used.
Therefore, the law steps in when an attempt is made to excite the feelings in others. Sec 124
A uses disaffection as a collective term holding all the negative end results. 106

❖ Attempt to incite hatred and contempt

An attempt is intentional and preparatory plan that fails in the objective of causing hatred and
contempt. Whenever someone tries to incite or attempts to bring hatred or contempt comes
within the sec 124 A, irrespective of the fact whether the intention has achieved the result. An
attempt does not mean success. Every utterance or writings tending to beget the ill opinion of
the Government is to be held seditious.107 The people have the right to discuss any grievances
that they complain of. An offence under the code is not complete unless the words spoken or
written are published and either they constitute an attempt to bring hatred to the Government,

103 7Sedition in Criminal Jurisprudence, available at

http://shodhganga.inflibnet.ac.in/bitstream/10603/143397/9/09_chapter%203.pdf (last visited on February 2,
2024).
104 Empress v. Bal Gangadhar Tilak, ILR 22 Bom 112.
105 Emperor v. Bhaskar Balwant Bhopatkar,1906 8 BOMLR 421.
106 Supra note 90.
107 B.G Tilak, (1867) I.L.R 22 Bom. 112.

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or bring hatred.108 In determining whether the intention with which any document is
published, is seditious or not, the writer must intend the consequences which would naturally
flow from his work, taking into consideration the time and circumstances of the case. In
order to bring the case within the ambit of sec 124 A, it is not necessary to prove that an
attempt of causing hatred or contempt was successful. 109

❖ Various forms of Excitement

There are various ways by which disaffection can be excited. It includes writing of any kind,
poem, drama, story, novels or essays. Publication of any kind is essential. 110 If seditious
writing remains unpublished or remains in the hands of author is does not constitute the
offence of sedition. Sending of seditious matter by post to someone not by name but by
designation amounts to publication if it is opened by anybody. 111Not only the author of
seditious matter but whoever uses it any way by words or printed matter for the purpose of
exciting disaffection towards the Govt is liable under this section.112 The printer, the publisher,
the editor or the

owner of the press of seditious publication is liable like the author unless he proves that he
was absent and was not aware of the contents of the paper. In order to escape the liability
printer or the publisher etc must prove lack of knowledge on his part. Sedition does not
consist only of written matter, it may consist of woodcut or engraving of any kind or by
exhibition of flags.113 ❖ Intention

Sedition is a crime, and for all crime there must be criminal intention. Intention of the
accused and his language play a vital part in the commission of the offence. Intention of the
114
accused is judged by writing or the speech of whole and not from the isolated passages.
So, the writing or the speech in question should not only be read as whole but should be read
in free, fair and liberal spirit.115

108 Supra note 32.

109 Supra note 37.
110 Emperor v. Suresh Chandra Sanyal (1912) 39 Cal. 606.
111 Ankur Gupta, “Sedition”, available at: http://www.rmlnlu.ac.in/webj/sedition.pdf (last visited on January 1,
2023).
112 Supra note 34.
113 P.S. Pillai, Criminal Law 183 (LexisNexis Butterworths Wadhwa, Nagpur, 10th edn.,2008).
114 Mufti Fakkrul Islam v. Emperor, AIR 1943 All.244.
115 Om Prakash Lal Chand v. Emperor, AIR 1948 Nag71.

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As the section is worded: it is said that when the effect of a writing is to excite disaffection,
intention to excite disaffection will be presumed. 116 The accused then needs to show that he
never intended that the result would be as it has been. To raise the presumption, disaffection
117
must be directly and necessarily traced to sedition. Therefore, in considering the intention
of the accused and the effect of his writings that are likely to produce, it is essential to take
into consideration the state of the country and the public mind at the date of publication of
seditious material.

❖ Government established by law

Sec 17 of the IPC defines the term “Government” and it denotes to Central government or the
government of the state. Previously the term “Government” was confined to the person or the
persons authorised by the law. The definition was amended by the Adaptation of the Laws
Order, 1950 and Act III of 1951.118 The expression “Government established by the law”
119
includes the executive power and does not mean only constitutional framework. It includes
the State government and Central government. Government of India is divided into three
154
departments: the legislature, the executive, the judiciary. According to Salmond,
government means a political or civil power vested in body of persons for exercising any

particular function of the State. According to him, Government is the agents of the state
through which the State as corporate unit, acts, moves and fulfil its needs. 120 A speech
directed against all the police, it would not come within the ambit of section 124 A. A general
criticism of officers or certain officers does not mean criticism of the government established
by the law. So, although the ministers may be referred as the government but they do fall
under the meaning of the term “government” within the sec 17 and sec 124 A of the IPC.121

❖ Expressing Disapprobation

The word “disapprobation” means to disapprove. Explanation 2 and 3 of the section provides
that a person does not excite or attempts to incite hatred, contempt or disaffection by

116 Supra note 32.

117 Ibid.
118 Ibid.
119 Kshiteesh Chandra Roy V. Emperor, AIR 1932 Cal.547.
154
Supra note 33.
120 Salmond, Jurisprudence, 6 Ed. At p.110.
121 Dhirendra Nath Sen v. Emperor, AIR 1938 Cal.721.

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expressing disapproval of the acts of the Government to bring out the change by lawful
means. Criticising or disapproving the administration does not constitute the offence of
Sedition.122It becomes sedition only when the intention is to induce people to cause
disobedience of the law or overthrowing the Government.

The purpose of the explanations in the section is to give protection to freedom of speech and
expression. It is for others to openly criticise the Government and the ministers. Only the acts
that have tendency of overthrowing the Government by bringing hatred and contempt against
it fall within the ambit of the sec 124A as it generates feelings of disloyalty to the
Government established by the law. Despite that, actions and the intentions with which they
are done needs to be looked in carefully before labelling them seditious act. 123

3.2.2 Statutes related to Sedition

Apart from Sec 124 A OF IPC, sedition has been included in various other statutes of India.

❖ Criminal Procedure Code (Sec 95)

Sec 95 provides Govt. with the right to forfeit the material punishable under sec 124 A on
stating the grounds. This section has two essential conditions; a) material is punishable
under section and b) Govt. states the ground for forfeiting the material. 124Chapter X of
Crpc

is concerned with maintenance of public order and tranquillity and permits Police,
Magistrate, Armed force to use force for dispersing the unlawful public assembly and for
restoring public order.

❖ Prevention of Seditious Meetings Act,1911

The Seditious Meetings Act was enacted by Britain to control dissent but despite that it
continues to remain in our statute books. Sec 5 of this Act permits District Magistrate or
Commissioner of Police to prohibit a public meeting in a proclaimed claim, if in his
opinion, such meeting is expected to promote sedition or disaffection towards the Govt.
122 Kl Vibhute, P S A Pillai’s Criminal Law 183(Lexis Nexis Buterworths Wadhwa, Nagpur,10th edn.2008).
123 Ibid.
124 Section 95 of Criminal Procedure Code, 1973: Power to declare certain publications forfeited and to issue
search warrants for the same where – (a)Any newspaper, or book, or
(b)Any document, wherever printed appears to the State Government to contain any matter the publication of
which is punishable under Section 124A or Section 153A or Section 153B or Section 292, or Section 293 or

46 | P a g e
 or causes disturbance to public disorder. Earlier, this legislation was enacted to restrain
the meetings carried on by the nationalist.125

❖ Unlawful Activities (Prevention) Act, 1967

According to Sec 2(o), supporting claims of secession, questioning the integrity of the
State and causing or attempt to cause disaffection against India is considered as unlawful
activity under the said Act. The punishment for unlawful activity is imprisonment
extending to seven years and a fine under Sec 13 of the said Act.126

3.3 Conclusion
England and New Zealand have repealed sedition provisions and have put into place other
laws to maintain public order situations. United States and Canada have retained their
sedition law, but it can be seen that these laws have not been put into operation for quite a
long time. In India and Malaysia, there is a widespread demand for the repeal of sedition
law as the instances for the use of law in contradiction to the freedom of speech and
expression are growing every single day. On the other hand, Australia has followed a
different route to cater to public order problem with seditious activities. Australia, instead
of repealing the law in total, has modernised it keeping in view. The use of vague

Section 295A of the Indian Penal Code (45 of 1860), the State Government may, by notification, stating the
government of its opinion, declare every copy of the issue of the newspaper containing such matter, and every
copy of such book or other documents to be forfeited to government, and thereupon any police officer may seize
the same wherever found In India and any Magistrate may by warrant authorize any police officer not below the
rank of Sub-Inspector to enter upon and search for the same in any premises where any copy of such issue or
any copy of such book or document may be or may be reasonably suspected to be.
terminology in the provision defining offence of sedition has resulted in miscarriage of
justice. The recent incidents of misapplication of Law of sedition reflects the gravity of
the situation. Due to the ambiguity in section 124A of IPC, it has become difficult for
courts to adjudicate upon the said provision of law. The discussion of Law of sedition and
its repercussions on freedom of speech and expression is incomplete without analysing
the judicial interpretation, which has been discussed in the succeeding chapters.

125Seditious Meetings, available at

http://shodhganga.inflibnet.ac.in/bitstream/10603/143397/10/10_chapter%204.pdf (last visited on February 22,
2024).
126 H.P. Gupta & P.K. Sarkar, Law Relating to Press and Sedition in India 254-255 (Orient Publishing
Company, 1stedn., 2002).

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 CHAPTER - 4

ROLE OF JUDICIARY IN RELATION TO

LAW OF SEDITION IN INDIA

48 | P a g e
In the previous chapter, the legal regime of law of sedition has been discussed at national and
international level. This chapter deals with role of judiciary in relation to law of sedition in
India. The law of sedition has presumed controversial importance because of constitutional
provision of freedom of speech and expression. Sec 124A has diversified career and
historical evolution that would reveal profuse changes it has undergone through judicial
interpretation and legislative amendment.

Law is not static. It evolves and adopt to changing societal norms, technological advances and
cultural shifts. This dynamic nature is essential in ensuring that addresses the changing needs
of the society. After the Constitution of India was enacted, constitutionality of Sec 124 A OF
IPC was an important question raised in few cases, leading to conflict of decisions in High
Court.

Critics argued that Sec 124A is ultra vires to the Constitution of India as it punishes merely
bad feelings against the Govt. It is unreasonable constraint on freedom of speech and
expression.

Therefore, in order to assess the constitutionality of the law of sedition, it is necessary to

discuss the interpretation of the law of the sedition from its commencement and analyse the
role of judiciary in India.

4.1 Judicial Interpretation of Law of Sedition by Courts in India

The offence of sedition has been misused by the authorities to serve the political interest of
the leaders. The interpretation of Sec 124A has not been uniform and it has changed with the
sociopolitical conditions within the society. The interpretation of the offence of sedition in
PreIndependence Era was imparted by the process of British who needed to stamp out any
kind of dissent. However, after the adoption of the Constitution, the interpretation was
different. The interpretation of the offence of sedition can be divided into two phases- one
during British rule and the other after Independence.

4.1.1 Colonial Interpretation

After the insertion of Sec 124A of IPC in 1870, the first case registered before the court was
Queen Empress V. Jogendra Chandra Bose.127 In this case, the proprietor, editor, manager and
the printer of the newspaper Bangobasi was charged under Sec 124A of the IPC for

127 ILR 19 Cal 35.

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publishing a seditious article criticizing the Govt. for passing Age of Consent Bill, 1891. 128
The Act raised the age of consent for sexual intercourse from ten to twelve for all the girls. Its
violation would constitute offence of Rape. The articles blamed Britishers for replacing
Indian culture with the British culture. At the trial, Sir C. Petheram, CJ observed that word
‘disaffection’ is contrary to the affection and is something amounting to hatred and dislike. 164
He observed that disaffection and disapprobation were different and it is not necessary that
that some kind of violence must occur as result of the seditious act. The Jury was not able to
reach consensus. All the four accused apologised and the charges were dropped.

In 1897, three trials took place under the Sec 124A of the IPC out of which trial of Bal
Gangadhar Tilak was the popular case.

In Queen Empress v. Bal Gangadhar Tilak and Keshav Mahadev Bal, 129 Tilak was editor,
proprietor and publisher of a newspaper ‘Keshari’, a Marathi weekly newspaper & Keshav
was the Manager and printer of Keshari. Both were accused of sedition and charged under
Sec124 of IPC. In 1897, they were accused for causing disaffection against Britishers by
publishing seditious articles in their newspaper. 130 One article depicted Shivaji mourning the
current state of the nation after waking up from sleep. In the second article, the speeches and
the lectures of different scholars were mentioned in which Shivaji’s killing of Afzal Khan was
discussed and how Indians should unite together to eradicate the foreigner rule. 167 After the
publications, Mr. Rand, the chairman of Plague Commission in Poona and Lt. Ayerest were
killed in Poona. The murder of two officers was linked with the outburst cause by the
publication of these articles.
The trial of Tilak was conducted in the Court of Justice Strachey.

The degree of disaffection was held to be irrelevant to determine the guilt of the accused.
Further, it did not matter even if publication caused no disaffection. While interpreting the

128 The Age of Consent Act, 1891, also known as Act X of 1891, was a legislation enacted in British India on
19 March, 1891 which raised the age of consent for sexual intercourse for all girls, married or unmarried, from
ten to twelve years in all jurisdictions, its violation was subject to criminal prosecution for rape. Later it was
repealed in 1950, available at: https://en.wikipedia.org/wiki/Age_of_Consent_Act,_1891 (last visited on April
1, 2024). 164 Ibid.
129 ILR (1898) 22 Bom 112.
130 Ibid.
167
Ibid.

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explanation clause, the court observed that an exception to the offence of sedition to apply the
attack must be policies of the Govt, and not upon the Govt. while drawing the distinction
between disaffection and disapprobation, the court held that disaffection is opposite of
affection whereas disapprobation means disapproval.

In the opinion of Justice Strachey, the main objective of the explanation is to protect the
genuine journalism. The purpose is to point out the defaults in governmental measures and to
improve upon them. Further, the intention is to be gathered from language employed in the
publication.

Tilak was convicted and was sentenced to imprisonment for 18 months while the other
accused was acquitted. His appeal to the High Court for grant of leave to appeal to Privy
Council was refused. Later, he presented a special leave petition before the Privy Council
which was also refused.

Second prosecution for sedition was in the case of Queen Empress v. Ramchandra
Narayan.131 In this case, the editor and proprietor, printer and publisher of a ‘Protad’
newspaper were booked under Section 124A of IPC for publishing an article titled
Preparations for becoming Independent which excited feelings of disaffection against the
government. The article depicted the state of affairs of Canadians that how they drafted their
own laws and were using collected taxes collected for their own benefit. In this article the
political conditions prevailing in India and Canada were compared. The author encouraged
Indians to unite and fight for the common cause. The two accused were held guilty of exciting
disaffection against the government and one was sentenced to transportation for life and the
other with transportation for seven years.169 The appeal against conviction was filed before
the High Court of Bombay and was heard by Full Bench comprising of Sir C. Farren, CJ
Justice Parsons and Justice Ranade. Justice Farren took recourse to Murray’s dictionary for
understanding the term disaffection since it has not been defined under any provision of IPC.
He pointed out that the word disaffection has been used in a special sense as meaning
‘political alienation or discontent, a spirit of disloyalty to the government or existing
authority’. He observed that an attempt to cause disaffection and an attempt to cause
contempt or hatred, discontent or attempt to alienate people against the government stands on
the same footing. Any disapprobation of the measures of the government would not constitute

131 ILR(1898) 22 Bom 152.

169
Ibid.

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an offence under Section 124A of IPC subject to its consistency with the temperament to obey
the government. Justice Ranade’s interpretation of word disaffection

seemed to be more appropriate as he stated that the use of the word disaffection did not mean
mere absence of love or goodwill. He opined that the word disaffection was very much
similar to disloyalty and has the tendency to corrupt minds of people and cause hatred or
contempt against the government. The court further observed that the punishment must be in
proportion to the offence, thereby, reducing the sentence of one accused to rigorous
imprisonment of one year while the other accused to a three months simple imprisonment.

The third is the set of three trials under section 124A of IPC was in the case of Queen
Empress v. Amba Prasad, Amba Prasad,132the proprietor and publisher of the newspaper
‘Jami-ul-ulam’, published in Moradabad, was booked under Section 124A of IPC for
publishing a seditious article titled ‘Azadi band hone kikabal Namuno’. At the trial, the
accused pleaded guilty and he was convicted. His appeal to the High Court was also
dismissed after taking into consideration the interpretation of sedition followed in the
previous cases. The point of discussion at the time was the meaning of the term disaffection
in the context it was used in section 124A of IPC. Justice Sir Petheram, CJ and Justice
Strachey defined disaffection as absence of affection. On the other hand, Justice Parsons and
Justice Ranade related the term disaffection with disloyalty. This created a confusion as to the
meaning of disaffection, so the legislature amended the section 124A of IPC In 1898.

Prosecution of Mahatma Gandhi, 1922: Mahatma Gandhi and S.G. Banker were prosecuted
under Section 124A of IPC for publishing three articles in a weekly journal ‘Young India’.
Mahatma Gandhi was the editor of the journal. In one of his articles titled ‘Tampering with
the Loyalty’, he appealed to the Indians to not join the British army because of the atrocities
committed by British against Muslims in India and their inhuman attitude in Punjab. In
another article titled as ‘A Puzzle and its Solution’, he expressed his wish to overthrow the
evil government and his article ‘shaking the manes’ had an opening statement ‘How can there
be any compromise whilst the British Lion continues to shake his glory claws in our face’? 133
At the trial, hearing was restricted only to the question of sentence as both accused pleaded

132 ILR (1898) 20 All 55.

133 The Great Trial of Mahatma Gandhi, 1922, available at: https://qrius.com/the-great-trial-of-mahatma-
gandhi1922/ (last visited on April 2, 2024).

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guilty. The court sentenced Mahatma Gandhi for 6 years of simple imprisonment following
the precedent of Tilak’s Case.134

Prosecution of Maulana Abul Kalam Azad: This case is another example depicting how the
British used law of sedition to restrict political expression. Maulana Azad and C.R. Dass were
arrested in Calcutta on December, 24 1921 ahead of a visit of Prince Wales. Maulana was
charged under section 17 (2) of the Criminal Law (Amendment) Act 1908. 135 But at the trial
the prosecutors pressed charges under section 124A of IPC with respect to two speeches
delivered by Maulana Azad at Mirzapur Park Calcutta. At the trial, he did not examine any
witnesses and instead helped the court in conducting a trial. Maulana Azad quoted prophet
Mohammad at his trial for sedition under Section 124 A of IPC that “If you see a wrong being
done, prevent and redress it with your hands, if you cannot do that, speak up against it. If you
cannot do even that, tell yourself it is wrong. But that it is a weaker form of faith”. Maulana
Azad himself asked for maximum punishment and he was made to undergo rigorous
imprisonment for one year.136

Prosecution of Sheikh Mohammad Abdullah, 1946: Sheikh Mohammad Abdulla was tried
under Section 124A of the Ranbir Penal Code 137 with respect to agitation launched by him,
against Maharaja Hari Singh challenging Maharaja’s title to rule. He also challenged the
manner in which Treaty of Amritsar,1846 was signed between Maharaja Gulab Singh,
predecessor of Maharaja Hari Singh and East India Company. Under the treaty, Maharaja
Gulab Singh bought Kashmir from East India Company for Rs. 75 Lakhs. Sheikh Mohammad
Abdulla pleaded not guilty and made the following statement in the court. Sheikh Abdullah
was convicted and sentenced to a simple imprisonment for three years. The trial urged the
people of Kashmir to demand their freedom. Sheikh Abdullah’s words broke open the walls
of court room and raised public awareness in every corner of Kashmir.138

134 Keshav Dayal, Famous Lawyers of Freedom Struggle and Trials of Freedom Fighters 109 (Universal Law
publishing Co. Pvt. Ltd. New Delhi, 2010).
135 Section 17 (2) of the Criminal Law (Amendment)Act 1908: Whoever manages or assists in the management
of an unlawful association, or promotes or assists in promoting a meeting of any such association or of any
members thereof as such members, shall be punished with imprisonment for a term which may extent to three
years or with fine, or with both.
136 A.G. Noorani, Indian Political Trials, 213 (Oxford University Press, 2005).
137 This refers to the Penal Code in Kashmir, which is substantially the same as the Indian Penal Code.
138 Supra note 32

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4.1.2 Post Independence Interpretation

After gaining independence in 1947, India inherited sedition laws from the British colonial
era, which were primarily aimed at quelling dissent against the colonial administration.
However, in post-independence India, there has been a gradual shift in the interpretation and
application of sedition law is influenced by constitutional principles and judicial rulings.

For a long period of time, courts, including the Supreme Court, have played a crucial role in
interpreting and refining the scope of sedition laws to ensure they are consistent with
constitutional guarantees of freedom of speech and expression under Article 19(1)(a) of the
Indian Constitution. Several landmark judgments have focused on the importance of
protecting dissent and criticism of the government, while also recognizing the legitimate
interests of the state in maintaining public order and national security.

In the case of Kedar Nath Singh v. State of Bihar,139 the Supreme Court upheld the
constitutionality of Section 124A but restricted the application to acts involving incitement to
violence or intention to create public disorder. The court held that criticism of the government
or dissenting views, however strongly worded, would not amount to sedition unless there is
incitement to violence or public disorder.

In the case of Ram Nandan v. State of Uttar Pradesh,178 constitutional validity of sec 124A in
view of Art. 13 and Art. 19 (1) (a) was put into judicial scrutiny but not for the first time. Ram
Nandan delivered a speech to group of villagers against the Central Govt. for not addressing
the issues of poverty and labour. He incited them to overthrow the Congress Govt. and
accused Nehru for being traitor for allowing partition. Sessions Judge convicted and
sentenced the accused for three years on the ground that sedition imposes reasonable
restriction, on the freedom of speech in the interest of public order under the article 19 (2) of
the Constitution. The accused preferred an appeal to the High Court challenging his
conviction and section 124A of IPC. The court observed that section 124A of IPC even
punishes those utterances, writings which may not result in public disorder. The Court held
that Sec 124 A is ultra vires and imposed restrictions on freedom of speech and expression.
Therefore, it violates the right of freedom of speech and expression.

139 AIR 1962 SC 955.

178
AIR 1959 All 101.

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In 1995, the SC held that mere raising slogans does not aim to incite hatred or contempt
against the govt and it is not punishable under Sec 124 A.

In the case of Bilal Ahmed Kaloo V. State of Andhra Pradesh,140a Kashmir youth was arrested
on charges of sedition in Hyderabad. The only evidence available against him was he was
spreading news about the Indian Army was indulging in cruelty against the Kashmiri
Muslims. The SC condemned the order of convictions by the lower court in serious offences
like sedition

and advised that reasonable care should be taken. SC held that Sec 124 A was not applicable
as accused did not create any hatred against the Govt. and charges framed against the accused
is based on allegations, so it is not possible to support the conviction of the accused under the
Sec 124A.

4.2 Expanding Ambit of Freedom of Speech & Expression

In Shreya Singhal v. Union of India, 141the SC added new dimension to the right of freedom of
speech and expression by extending the right to an online social platform after declaring Sec
66a of IT Act unconstitutional. It was held in a writ petition filed under Article 32 of the
Constitution of India. This writ challenged Constitutional validity of Sec 66A of IT Act vis-
àvis freedom of speech and expression under Article 19(1) (a) of the Constitution of India.142

The SC held that Sec 66A of the IT Act should employ words like annoyance or
inconvenience and no line has been drawn between a general discussion on any issue on
social media and an issue to cause annoyance. The ‘doctrine of vagueness’ was applied in this
case, that is, a provision is held invalid if its terminology is too arbitrary or vague. The
‘doctrine of vagueness’ was also applied in a previous case decided by Supreme Court,
wherein the court held that “It is the basic principle of legal jurisprudence that an enactment
is void if its prohibitions are not clearly defined. Vague laws offend several important values.
It is insisted that the laws give the person a reasonable opportunity to know what is
prohibited, so that he may act accordingly.
Vague law may trap innocent person by not giving fair warning.143

140 AIR (1997) 7 SCC 431.

141 W.P. (Crl) 167/2012.
142 Ibid.

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While repealing the section 66A of the Information Technology, the Supreme Court held that
in the absence of any disturbance or violence a mere speech cannot be restricted in the
interest of ‘maintenance of public order’ or security of state. The background of the case was
arrest of two females in Bombay who were arrested over their Facebook post. In 2012,
Shaheen Dhada and Rim Srinivasan posted their views on Facebook condemning the Bandh
called by Shiv Sena after the demise of the Shiv Sena Chief Bal Thackeray. Later, the women
were released but it sparked a row that police misused its authority by invoking section 66A
of IT Act.183

In 2016, a petition was filed in Supreme Court that senior police officer may be given
authority to certify that the act of the accused involved ‘tendency to violence or public
disturbance’. The

Supreme Court allowed the petition and issued directions to the courts below to try pending
sedition cases according to the principle laid down in Kedar Nath’s Judgement.144

4.3 Recent Events: Moment of Contradiction Between Sedition & Freedom

of Speech & Expression:

In 21st century, the recent events have raised concerns about the misuse of Law of sedition by
the Government to curb the political dissent. Various sections of the society have demanded
to review the sedition law or repeal it as it stands in way of freedom of speech and
expression. Sedition vis-à-vis freedom of speech and expression has been hot topic of
discussion:

❖ In 2002, a new trend of imposing mass charges of sedition emerged in Haryana. This
was in relation to a protest made by Bhartiya Kisan Union against the unfulfilled
promise made by the Chautala government for providing free electricity to the farmers
in Haryana. The protest was led by Gashi Ram Nain, a Jat farmer. He was arrested and
booked for sedition for inciting the farmers to commit acts of violence and to make
public officials as hostages. After his arrest, the protest took a new turn and it got
worse. The protestors demanded the release of Gashi Ram Nain and approximately 53

143 Kartar Singh v. State of Punjab, (1994) 3 SCC 569.

183
Supra note 183.
144 Common Cause and Another v. Union of India, (2016) 15 SCC 269.

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 protestors were charged with sedition. The Congress tried to take benefit of the
situation and it was announced that if congress wins election in Haryana and then
Gashi Ram Nain would be released. The Congress came to power in 2009 and ordered
the scrapping of charges against all the protestors and Gashi Ram Nain was also
released.145

❖ In 2005, on the anniversary of ‘Operation Bluestar’ the President of Dal Khalsa 146
H.S. Dhami and his spokesperson were arrested and booked under sedition for raising
slogans ‘Khalistan Zindabad’ and urging people to uplift the demand of Khalistan.
They took the defence that police twisted the slogans and portrayed them as ‘anti-
nationals’. In 2012, the charges were dropped as there was no sufficient evidence
against the accused.187

❖ In 2006, Krantikari Mazdoor Kisan Union working for the rights of the Dalits in
Haryana, launched a protest against the distribution of common land in the village

Ismailpur favour of the Dalits. KMKU members illegally took possession of the land
and it was also reported that seditious speeches were made. The local newspapers
quoted one of the members of KMKU stating, “we will occupy lands on the lines of
Maoists in Andhra Pradesh”. At this time, police intervened and tried to suppress the
protest ok KMKU. There was a clash between the two and by evening 33 protestors
were arrested and charged with sedition. Later, the charges were dropped, and the
protestors were acquitted of other charges also in 2010.147

❖ Binayak Sen, a civil rights activist and two others were arrested by Chattisgarh Police
in 2007 on the charges of Sedition and having links with Naxalites. Raipur Sessions
Court found Sen guilty of sedition and sentenced him to life imprisonment. An appeal
148
was filed in the Chhattisgarh High Court challenging the Sessions Court order. The
High Court granted bail to Binayak Sen while, orally observing, as per several
newspaper reports, that the evidence on record proves no sedition case against Sen.190
145 Anushka Singh, Sedition in Liberal Democracies 237-242 (Oxford University Press, New Delhi, 2018).
146 Dal Khalsa was first formed in 1748, when Sikh chieftains joined hands to counter the armed invasion of
Ahmad Shah Durrani, who occupied Lahore in 1748. Dal Khalsa was later revived in the twentieth century. It is
often said that this was revived by Congress to counter the Popularity of Shiromani Akali Dal, another
organization demanding separate state for Sikhs. 187 Supra note 188 at 294-296.
147 Supra note 188 at 247-250.
148 Dr. Binayak Sen’s case, available at: https://globalfreedomofexpression.columbia.edu/cases/binayak-sen-
vchhatisgarh/ (last visited on April 10,2024). 190 Ibid.

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 ❖ In November 2010, noted writer and activist Arundhati Roy and 5-6 others were
charged with Sedition by Delhi Police for allegedly having made anti-India remarks at
an event organized in Kashmir.149

❖ Aseem Trivedi, a noted cartoonist was arrested in September 2012, based on a

political activist’s complaint that his cartoons insulted the country. The charge was in
connection to a cartoon he had made depicting the national emblem in support of the
anticorruption movement in the country. The sedition charges were scrapped by the
Supreme Court in 2015.150

❖ Kanhaiya Kumar, the president of Jawaharlal Nehru University Student’s Union along
with his colleagues Umar Khalid, Anirban Bhattacharya and one other were arrested
and charged with sedition by the Delhi Police for raising anti-India slogans in a
student event organized within the Jawaharlal Nehru University. 151 On 2ndMarch
2016,
Kanhaiya Kumar was released on interim bail for lack of conclusive evidence.194

❖ In January, 2019, police filed a charge sheet against him, under section 124A of IPC.
In June 2019, Hard Kaur, a popular rapper, was booked for sedition for posting
comments on social media, critical of Yogi Adityanath, the Chief Minister of Uttar
Pradesh. She referred him as ‘orange rapeman’ and also defamed Rashtritya
Swayamsevak Sangh chief, Mohan Bhagwat by calling him ‘racist murderer’. She
commented that Mohan Bhagwat was responsible for all terror attacks in India.152

❖ Vinod Dua, a senior journalist in his youtube show “The Vinod Dua Show” talked
about inadequacy of testing facilities, PPE suits and ventilators. On 30 march 2020,
Vinod Dua was accused of sedition charges. In June 2021, The Supreme Court
dismissed the charges as he was within his journalist’s rights. The court held that

149 Sedition charge against Arundhati Roy, available at : http://economictimes.indiatimes.com/news/politics-

andnation/section-124a-from-mahatma-gandhi-to-arundhati-roy-sedition-charges-often-invoked-but-rarely
stick/articleshow/51016526.cms (last visited on April 11, 2024).
150 Assem Trivedi’s case, available at: https://www.abc.net.au/news/2017-10-22/indian- cartoonist-
arrestedsedition-free-speech-under-threat/9069294 (last visited on April 11, 2024).
151 Kanhaiya Kumar’s case of Sedition, available at: http://www.thehindu.com/news/cities/Delhi/Govt.-
actstough-JNU-student-leader-charged-with-sedition/article14075511.ece (last visited on April 12, 2024). 194
Supra note 196.
152 Hard Kaur booked for sedition, available at: https://indianexpress.com/article/india/sedition-case-
againstrapper-hard-kaur-over-remarks-against-yogi-adityanath-mohan-bhagwat-5790706/ (last visited on April
3, 2024). 196 AIR 2021 SC 3239.

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 citizen has right to criticise the measures undertaken by the Govt.as long as it does not
incite hatred among people or create public disorder.196

❖ In 2021, Disha Ravi was environmentalist activist of Bengaluru. She was editor of
toolkit specially made to support farmers in the protest. The state argued that some of
the contents of the toolkit was objectionable. The documents circulated in social
media were alleged to be seditious, showing disaffection against the Govt. The court
held that the citizens cannot be put behind the bars simply because they choose to
disagree with the policies of the state. The court granted her bail as she has no direct
link with the violence of Jan 26, 2021.153

4.4 Conclusion
The above discussion reflects the change in the attitude of judiciary with efflux of time. In
India, judiciary has narrowed down the scope of offence of sedition to protect freedom of
speech and expression which has time and again been held to be an indispensable right in
a democratic setup. From the above cases, it is concluded that number of prosecutions
under the offence of Sedition is in large number as compared to successful trials.

CHAPTER -5

CONCLUSION AND SUGGESTIONS

5.1 Conclusion
Law of Sedition have its root in the colonial era but continues to be in India’s legal structure.
In Post Independence era, the law was brought in order to ensure national sovereignty,
however it has failed to fulfil its motive. In post-independence India, the concept of Sedition
reflects a fine balance between protecting the national security and preserving the

153 AIR 2021 DEL 159.

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 fundamental right to freedom of speech and expression. The interpretation of Sedition has
evolved through legal precedents, landmark judgement and societal changes. It has become
subject of debate among jurists, lawyers, activists and journalists, because of sudden rise of
sedition cases against diverse people across India. In recent times, we have seen that mere
chanting of slogans without exciting hatred and contempt among people, has been put under
the ambit of Sec124A. Moreover, in some cases, the court struggled to balance out the
constitutional provisions and the Sec 124A of the IPC.

Over the years, there have been calls from various quarters, including civil society
organizations, legal experts, and human rights activists, for the repeal or reform of law of
sedition in India. Critics argue that these laws are remnants of colonial-era legislation and are
incompatible with democratic principles, particularly freedom of speech and expression. For
correct functioning of democracy, citizens must indulge in positive debates and criticism,
pointing out the faults in the measures of the Government. Expressions used to express the
thoughts might be harsh, however that does not mean that the actions have to branded under
Sec 124A. Irresponsible exercise of the right to freedom of speech and expression cannot be
termed as Sedition. As a result, the arbitrary application of Sec 124A is truly matter of
concern in recent scenario. Therefore, the scope of Sec124 A must be narrowed down by
legislature and the judiciary for its arbitrary usage. Therefore, the formal reforms can only be
introduced when the legislature introduces the changes required and when efficient steps are
taken to expand the values and notions of democracy.

In conclusion, law of sedition has legitimate role in protecting the national security, so the
application of sedition law must be carefully scrutinized to ensure that it does not infringe the
fundamental rights and freedoms. There is a need for continued dialogue and reform to strike
the right balance between preserving public order and upholding democratic values in India's
legal framework.

5.2 Testing of Hypotheses

The research began with the list of hypotheses and after going through a plethora of literature,
legislative provisions and judicial interpretations inferred from Courts judgements available,
the researcher has come to the following surmise that:

I. Law of Sedition is misused by the authorities in the name of security and the
integrity of the State.

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 This was found correct as the high number of unsuccessful trails of sedition reveals the

misuse of the sedition law by the executives. As per the NCRB data from 2010-2020, 168
cases were filed in Bihar, 139 in Tamil Nadu, 115 in Uttar Pradesh, 62 cases in Jharkhand
while 50 cases in Karnataka and only 30 cases in Odisha. However, in sedition cases, only in
few cases have resulted in conviction. Out of all the cases, 23% cases were found to false or

mistake of law and 58 % cases were closed because of lack of evidence. The data shows that
police and state authorities are using the sedition law indiscriminately to create fear and

silence the criticism against the government. Between 2014-2019, 326 cases were filed with
sedition charges. Charge sheet was filed only in 141 cases which resulted in only 6
convictions. In recent times, sedition charges were pressed against intellectuals, human rights,
filmmakers, university teachers, journalists, activists and even students in great number.
There are plethora of cases were law of sedition has been misused by the ill intentional
individuals. For instance, in the case of Sanskar Marathe V. State of Maharashtra, Aseem
Trivedi, a social activist and political cartoonist, uploaded some of the cartoons online against
the corruption in India. He was accused of insulting Constitution of India, parliament and the
Ashok Emblem and was charged with sedition. Additional Metropolitan Magistrate issued a

non bailable warrant against him. Arun Jaitley, a senior supreme court lawyer, wrote an
article based on supreme court judgement which set aside the act passed to replace the
collegium system of judicial appointment on NJAC. The Judicial Magistrate took suo moto
and charged him under Sec124A and Sec 505 of the IPC. The widespread perception is that
sedition laws are being used as a tool to silence dissent and intimidate critics rather than to
address genuine threats to public order or national security.

II. Law of Sedition has violated Freedom of Speech and Expression.

This was found correct as application of law of sedition in India has been criticised for
violating the freedom of speech and expression. Sec 124 A defines the offence of Sedition in
broad terms. According to this section, any speech, writing, or action that is deemed to bring
hatred or contempt towards the government established by law, or excites disaffection against
the government will be termed as sedition. Because of this vague definition, it has been
widely interpretated and applied arbitratily. Law of Sedition have often been misused by the
authorities to target political opponents, activists, journalists, and dissenting voices. Cases
have been filed against individuals for merely expressing their opinions or participating in
peaceful protest, weekening the democratic principles of freedom of speech and expression.

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More often, the law of sedition has been used as a tool to stifle political dissent which
included the arrest of 14 students from Aligarh Muslim University for raising “anti-national”
slogans, the arrest of a Manipur student activist for a social media post on the Citizenship
Amendment Act, 2019 32 and the charge of sedition on four Kashmiri students in Rajasthan
over social media posts about a recent terror attack in Jammu and Kashmir. The arrest of
NDTV journalist Vinod Dua for criticizing the Government's response to tackling COVID-19,
the 22- year-old climate change activist Disha Ravi for her involvement with an online toolkit
and for tweeting in solidarity with the farmers’ protests raises questions regarding the divinity
of freedom of speech and expression. Therefore, these instances clearly indicate that law of
sedition is misused and has been interpreted by the authorities in a way that suit their personal
political interest which defeats the basic purpose of the law. Sedition is threat to freedom of
speech and expression as well as democracy. We need to ensure that fundamental right of
freedom of speech and expression is not taken away by misusing this law.

In present scenario, the concept of democracy and freedom of speech and expression have
become synonymous. Therefore, there is a need to fit in the law of sedition and to determine
its scope. There is a need to reform the law of sedition in a new political, social and
democratic set up. Repealing the law of sedition has serious implications as the country is
facing the problem of insurgency and separatist elements. Presently, there is no self- sufficient
and a comprehensive law to deal with such a menace. In this situation doing away with law of
sedition does not seem to be a smart move. Retention of the law of sedition with old colonial
phraseology has led to abuse and violation of fundamental right of freedom of speech and
expression. Therefore, there is pressing need to update and modernise the law of sedition.

5.3 Suggestions and Recommendation

Based on the study, the researcher poses the following recommendations in view of the
abovementioned problems. These recommendations address the concern of misuse of
application of Sedition.

❖ Precise Definition: The Language employed in defining the offence of sedition is not
precise and needs more clarity. Many critics believe that vague and ambiguous
wording of the law of sedition allows authorities to interpret it broadly, leading to
misuse. Therefore, the sedition law should be defined more precisely to avoid

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 ambiguity and subjective interpretations. A clear and specific definition would help in
ensuring that it is not misused by the authorities to suppress and stifle criticism.
❖ Minimise the quantum of punishment: The quantum of punishment provided under the
Sec 124 needs to be rationalised. The punishment for the offence of sedition must be
awarded taking into the consideration the gravity of the offence. The punishment must
be reduced to maximum punishment of 7 years of imprisonment and fine, that would
be an appropriate punishment for sedition.
❖ Balancing national security and freedom of speech and expression: Any reform or
amendment to the sedition law should strike a balance between protecting national
security and safeguarding freedom of expression. Sedition should focus on acts that
pose a genuine threat to public order, incite violence, or endanger the integrity of the
state while ensuring that peaceful dissent and criticism are not stifled.
❖ Judicial Clarity: The judiciary should provide well defined guidelines for
interpretation and application of sedition law. Clear guidelines would prevent arbitrary
application
❖ Procedural Reforms: Implementing safeguards and procedural reforms can help in
reducing the misapplication of law of sedition. This might include higher standard of
evidence, transparency and accountability in investigation.
❖ Public Awareness and Sensitization: There is a need for public awareness campaigns
and sensitization programs to educate citizens, law enforcement authorities, and the
judiciary about freedom of speech and expression and the potential drawbacks of the
sedition law.
❖ Distinction between sedition and hate speech: In order to invoke Sec 124A,
distinction should be made between sedition and hate speech. Impugned speech must
cause harm to the security of the state, sovereignity and the integrity of the India. This
recommendation was even made by the Law Commission in its 267th report.

Bibliography

Primary Sources
Acts and Statutes: India

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1. The Code of Criminal Procedure, 1973

2. The Constitution of India, 1950

3. The Indian Penal Code, 1860

4. The Seditious Meeting Act, 1911

5. Unlawful Activities (Prevention) Act, 1967

Acts and Statues: International

1.Alien Registration Act, 1940

2. Anti-Terrorism Act, Australia

3. The Constitution of United States

4. The Crimes Act1920, Australia

5. The Crimes Act, 1961, New Zealand

5. The Criminal Code, Australia

6, The Criminal Code, Canada

7. The Criminal Code, Spain

8. The Sedition Act 1661, Britain

Secondary Sources
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(Universal Law publishing Co. Pvt. Ltd. New Delhi, 2010).
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edn 2013).

3. Gaur, K.D, The Indian Penal Code (Universal Law Publishing Co. Pvt. Ltd., New Delhi,
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4.Lal, Ratan & Lal,Dhiraj, Law of Crimes (Lexis Nexis, New Delhi, Vol I, 26th edn., 2007).

5.Pandey, K.A & Gandhi, B.M Penal Law (Eastern Book Company, New Delhi, 5 th edn,
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64 | P a g e
7.Sorial, Sarah, Sedition and the Advocacy of Violence: Free Speech and Counter-Terrorism
(Routledge Taylor and Francis Group, 8th edn2012).

8.Singh, Ujjwal Kumar, Political Prisoners in India (Oxford University Press, New
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9. Wacks,R., Understanding Jurisprudence (Oxford University Press, London, 2009).

10.Uppal, Rijul Singh, Sedition: Macaulay to Modi (KW Publishers, New Delhi, 2024)

Articles published in Journals

1. Cerecina Mila, “Semiotics, Constructivism and Sedition” Sydney L.Rev. (2007)

2.Mishra Anand, “Freedom to Express Includes Free Speech with Freedom to Offend” MLJ
(2011)

3. Sakena Nivedita and Srivastava Sidhartha, “An Analysis of the Modern Offence of
Sedition”
NUJS Law Review

4.Taraporewala B.I, “Freedom of Speech and Expression” BLR (1997)

Reports

Foreign and Commonwealth Office Annual Report: Human Rights-2008 (United Kingdom
Foreign and Commonwealth Office, 2009)

Websites

1. Abolition of Sedition, available at:

https://www.englishpen.org/wp content/uploads/2015/09/seditious_libel_july09.pdf

2.Assem Trivedi’s case, available at: https://www.abc.net.au/news/2017-10-22/indian-

cartoonist-arrested-sedition-free-speech-under-threat/9069294

3.Dr. Binayak Sen’s case, available at:

https://globalfreedomofexpression.columbia.edu/cases/binayak-sen-v-chhatisgarh/

4.English Law, available at: https://en.wikipedia.org/wiki/English_law

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5.History Of Sedition law in India, available at :
https://www.newslaundry.com/2016/02/16/aquick-history-of-sedition-law-and-why-it-cant-
apply-to-jnus-kanhaiya-kumar

6.Kanhaiya Kumar’s case of Sedition, available at:

http://www.thehindu.com/news/cities/Delhi/Govt.-acts-tough-JNU-student-leader-
chargedwith-sedition/article14075511.ece
7.The Great Trial of Mahatma Gandhi, 1922, available at: https://qrius.com/the-great-trial-
ofmahatma-gandhi-1922/

8. The Origin of Free Speech, available at:

https://www.theguardian.com/media/2006/feb/05/religion.news
9.Origin of Free Speech, available at: https://www.history.com/topics/united-
statesconstitution/freedom-of-speech
10.Sedition, available at: http://www.rmlnlu.ac.in/webj/sedition.pdf (last visited on January 1,
2023).

11.Sedition charge against Arundhati Roy, available at :

http://economictimes.indiatimes.com/news/politics-and-nation/section-124a-from-
mahatmagandhi-to-arundhati-roy-sedition-charges-often-invoked-but-rarely
stick/articleshow/51016526.cms

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