A History Of The Infamous Section 124A

By ATUL DEV | 25 February 2016

PUBLIC DOMAIN
The trial that changed the effect of section 124A was that of Bal Gangadhar Tilak in 1897.

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On 12 February 2016, two policemen in plain clothes arrested the president of the student
union of the Jawaharlal Nehru University (JNU), Kanhaiya Kumar. On 9 February, students
from JNU had allegedly shouted slogans at an event marking the death anniversary of
Mohammad Afzal, who was convicted in the 2001 terror attack on the parliament. On
Tuesday, 23 February, Umar Khalid and Anirban Bhattacharya, two of the alleged organisers
of the event, surrendered themselves to police custody following an eleven-day-long
manhunt. Kumar, Khalid and Bhattacharya have been charged under the Indian Pen

9 fr54e al Code (IPC) Section 120B, which deals with criminal conspiracy against the state,
and 124A, which contentiously attends to sedition.

Though few have ever been convicted by the Supreme Court for sedition, many have been
booked under Section 124A. Most recently, before Kumar, Khalid and Bhattacharya, section
124A was invoked against Hardik Patel from Gujarat, who has been asking for reservations
for the Patidar community. Sedition in India is a cognizable (not requiring a warrant for an
arrest), non-compoundable (not allowing a compromise between the accused and the victim),
and non-bailable offence. The penalty can range from a fine to three years or life
imprisonment. But these penalties would be awarded after the judgement, which can take a
long while to come. Meanwhile, a person charged with sedition must live without their
passport, barred from government jobs, and must produce themselves in the court on a loop.
All this, while bearing the legal fee. The charges have rarely stuck in most of the cases, but
the process itself becomes the punishment.
Section 124A did not make it into the IPC until 1870 (although a section corresponding to it
was present in Thomas Macaulay’s Draft Penal Code in 1835). It was brought in 10 years
after the IPC was introduced, possibly, to counter the surging Wahabi activities in the
subcontinent. At that point, it was a law against “exciting disaffection.” The first case was
registered, in 1891, when the editor of a newspaper called Bangobasi was booked for
publishing an article criticising an “Age of Consent Bill.” The jury could not reach a
unanimous verdict and the judge, in that case, refused to accept any verdict that was not
unanimous. The editor was released on bail, and, after he issued an apology, charges against
him were dropped.
The trial that changed the effect of section 124A was that of Bal Gangadhar Tilak in 1897.
The British government claimed, according to an article in the Economic and Political Weekly,
that Tilak’s speeches on the killing of Afzal Khan by Shivaji, had prompted the murder of
two British officers in Pune. Newly promoted Justice James Strachey presided over this trial,
and broadened the scope of section 124A in the proceedings by equating “disaffection” to
“disloyalty.”He interpreted that the term “feelings of disaffection” meant hatred, enmity,
dislike, hostility, contempt, and every form of ill will towards the government. Tilak was
charged with sedition. He was released a year later, following German economist and jurist,
Max Weber’s intervention. But on the basis of Strachey’s interpretation, the section was used
repeatedly against nationalist leaders by the colonial government. Tilak himself went on to
face the same charge again, twice, and ended up spending six years in prison for an editorial
published in his newspaper, Keasari.
In 1922, Mohandas Karamchand Gandhi was brought to court for his articles in Young
India magazine. Gandhi famously denounced the law against sedition in the court: “Section
124A under which I am happily charged, is perhaps the prince among the political sections of
the IPC designed to suppress the liberty of the citizen.”
The issue of sedition was anxiously discussed during constituent assembly debates. On 29
April 1947, when laying out the Rights of Freedom, Vallabhbhai Patel—who went on to
become the home minister of India—made an exception for “seditious, obscene,
blasphemous, slanderous, libellous or defamatory” language. The Communist Party of India
leader, Somnath Lahiri opposed the use of the word seditious. “As far as I know, even in
England, a speech, however seditious it may be, is never considered a crime unless an overt
act is done,” Lahiri said. The members continued debating, coming back to the question of
sedition intermittently. Finally, an amendment was moved to drop the word and not allow it
to infringe upon the freedom of speech and expression. On 2 December 1948, senior
Congress leader, Seth Govind Das spoke jubilantly in the house:
The restriction imposed later on in respect of the extent of this right, contains the word ‘sedition.’ An
amendment has been moved here in regard to that. It is a matter of great pleasure that it seeks the
deletion of the word ‘sedition.’ I believe they remember that this section was specially framed for
securing the conviction of Lokamanya Bal Gangadhar Tilak. Since then, many of us have been
convicted under this section. In this connection many things that happened to me come to my mind…
I mean to say that there must be many Members of this House who must have been sentenced under
this article to undergo long periods of imprisonment. It is a matter of pleasure that we will now have
freedom of speech and expression under this sub-clause and the word ‘sedition’ is also going to
disappear.
The word did indeed disappear from the constitution when it was adopted on 26 November
1949, but section 124A stayed in the Indian Penal Code. Then, in 1950, two Supreme Court
judgements led the government to introduce the much-maligned first amendment. The first
case involved objectionable material in Organiser, a magazine run by the Rashtriya
Swayamsevak Sangh; the second was against a magazine called Cross Roads, for criticising
the government. In both the cases, the Supreme Court sided with the government. It asked
the editor of Organiser to clear provocative content with a regulating authority, and
banned Cross Roads. In light of these judgements, Jawaharlal Nehru brought in the first
amendment.
Later, speaking in the parliament, Nehru specified that the amendment does not validate laws
such as sedition. “Take again Section 124-A of the Indian Penal Code. Now so far as I am
concerned that particular section is highly objectionable and obnoxious and it should have no
place both for practical and historical reasons, if you like, in any body of laws that we might
pass. The sooner we get rid of it the better,” he said. Even as the section stayed in the IPC,
these words of Nehru guided the courts. Three judgements regarding section 124A were
passed in the 1950s in high courts, and all of them acquitted the accused.

In post-independence India, however, the judgement with the most impact came in January
1962. In the case of Kedarnath versus the State of Bihar, the constitutional bench of the
Supreme Court defined the scope of sedition for the first time and this definition has been
taken as precedent for all matters pertaining to Section 124A since. Until Independence,
there were broadly two views on Section 124A: that of the judgements given by the Federal
Court, and that of the judgements passed by the Privy Council (the highest court of appeal
for commonwealth countries, they were abolished in India following the passing of abolition
of privy council jurisdiction act, in 1949). The former asserted that public disorder or the
reasonable anticipation or likelihood of public disorder is the gist of the offence; the latter
said that the speech itself, irrespective of whether or not it leads to an incident, could be an
offence. Taking in account Article 19A (the freedom of speech and expression) of the
constitution, the bench observed in the judgement’s headnote, “If the view taken by the
Federal Court was accepted, Section 124A would be constitutional but if the view of the
Privy Council was accepted it would be unconstitutional.” Later, it states that it stands with
the Federal Court, and the constitution.

Kedarnath Singh was convicted by the high court for his speech that lampooned the Crime
Investigation Department and the Congress party. “To-day the dogs of CID are loitering
around Barauni. Many official dogs are sitting even in this meeting. The people of India
drove out the Britishers from this country and elected these Congress goondas to the gaddi.”
He accused the Congress of corruption, black-marketing and tyranny and talked about a
revolution that would overthrow capitalists, zamindars and Congress leaders. The
constitutional bench upheld the punishment given to Kedarnath by the high court but at the
same time limited the section’s scope. Towards the end, the judgement states that the section
penalises words that reveal an intent or tendency to disturb law and order or that seem to
incite violence. And then, it draws a line: “It has been contended that a person who makes a
very strong speech or uses very vigorous words in a writing directed to a very strong
criticism of measures of Government or acts of public officials, might also come within the
ambit of the penal section. But, in our opinion, such words written or spoken would be
outside the scope of the section.”
With this case, the court upheld the constitutionality of the sedition law, but also curtailed its
scope in its application. The “anti-nationalism” that the three JNU students are accused of
may be perceived as such, but as Fali Nariman, the constitutional jurist and senior advocate
to the Supreme Court, points out, “mere expressions of hate, and even contempt for one’s
government, are not sedition.”

Macaulay to Strachey
Before 1832, the English law of “seditious libels” was actually quite expansive.
A person could be convicted for sedition for saying anything that brought the
government into “hatred or contempt” or even for merely raising “discontent
or disaffection” against the government. In other words, it was not necessary
for a person to say something that was actually likely to make people take up
arms against the government.
However, this changed after 1832. In his authoritative 19th century treatise on
the history of English criminal law, Sir James Fitzjames Stephen wrote that
prosecutions for sedition in England since 1832 were “so rare that they may be
said practically to have ceased”. “In one word,” he wrote, “nothing short of
direct incitement to disorder and violence is a seditious libel.” Ironically,
Stephen was the Law Member of the Viceroy’s Council who would introduce
sedition into the IPC.
The original draft of the IPC was drawn up in 1837 by the Indian Law
Commission headed by T.B. Macaulay. Section 113 of this draft made it an
offence to “excite feelings of disaffection against the government”. Macaulay’s
definition of sedition was not as broad as the pre-1832 English law of seditious
libels. For instance, Macaulay did not make it an offence to excite hatred,
contempt or ill will against the government, choosing only the vague word
“disaffection” to describe sedition. However, Macaulay’s draft did not reflect
the current state of the law in England either, according to which only direct
incitements to violence against the state were considered seditiou

Sedition in India: Section 124 A of IPC vs Freedom of Speech

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Sedition in India is defined by section 124 A of the Indian Penal Code. Section 124A was
introduced by the British colonial government in 1870 when it felt the need for a specific
section to deal with radical Wahabi movement of the 19th century, led by Syed Ahmed
Barelvi and centred around Patna.
Section 124 A of IPC
Section 124 A states:
“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 shall be punished with
imprisonment for life, to which fine may be added, or with imprisonment which may extend
to three years, to which fine may be added, or with fine.
 Explanation 1 – The expression “disaffection” includes disloyalty and all feelings of
enmity.
 Explanation 2 – Comments expressing disapprobation of the measures of the attempting
to excite hatred, contempt or disaffection, do not constitute an offence under this
section.
 Explanation 3 – Comments expressing disapprobation of the administrative or other
action of the Government without exciting or attempting to excite hatred, contempt or
disaffection, do not constitute an offence under this section.”
Sedition laws in India

Altogether, Sedition laws are found in the following laws in India:

 the Indian Penal Code, 1860 (Section 124 (A))

 the Code of Criminal Procedure, 1973 (Section 95)
 the Seditious Meetings Act, 1911 and
 the Unlawful Activities (Prevention) Act (Section 2 (o) (iii)).
Some Famous Sedition Trials:
1. It is accepted that the first time, the act was invoked, was against Jogendra Chandra
Bose, the editor of Bangobasi, for voicing against Age of Consent Bill, 1891.
2. Bal Gangadhara Tilak. First in 1897 for exhorting to act against Rand, the Plague
Commissioner. Second in 1909 in respect of certain articles published in the “Kesari” in
May and June 1908, for which he was deported to Mandalay.
3. Gandhiji in 1922, for three articles published in the magazine Young India.
4. Cartoonist Aseem Trivedi, 2011. He was arrested in Mumbai under IPC Section 124
(sedition), section 66 A of Information Technology Act and section 2 of Prevention of
Insults to Nation Honour Act. The Kanpur-based artist had been accused of putting up
banners mocking the Constitution during a rally of anti-corruption crusader Anna
Hazare in Mumbai and posting the same on his website.
5. Dr Binayak Sen was accused of sedition by the Chhattisgarh government in 2011.
An Indian paediatrician, public health specialist and activist, Dr Binayak Sen is the
national vice-president of the People’s Union for Civil Liberties. He was accused of
acting as a Maoist messenger
 6. Arundhati Roy, Hurriyat leader Syed Ali Shah Geelani and others were booked on
charges of sedition by Delhi Police for their “anti-India” speech at a seminar in 2010,
for advocating independence for the disputed Kashmir region.
7. Praveen Togadia was in 2003 slapped with the charge of sedition by the Rajasthan
government. The charges include an attempt “to wage a war against the nation.”
8. Latest case against JNUSU President Kanhaiya Kumar.

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Sedition laws vs Freedom of Speech and Expression

It is argued that along with colonial laws like criminal defamation, laws on obscenity and
blasphemy, the sedition law also runs against the ideal of Freedom of Expression, guaranteed
under Article 19 (1) (a) of the Indian constitution. Why such an argument against an
otherwise pious act which thwarts acts threatening India’s sovereignty?

 Gandhiji was one of the greatest opponent of the sedition act. It is only appropriate to
quote his defence, during the 1922 sedition trial. He said, “…Section 124 A under which
I am happily charged is perhaps the prince among the political sections of the IPC
designed to suppress the liberty of the citizen. Affection cannot be manufactured or
regulated by the law. If one has no affection for a person, one should be free to give
the fullest expression to his disaffection, so long as he does not contemplate, promote
or incite to violence. But the section under which Mr Banker and I are charged is one
under which mere promotion of disaffection is a crime. I have studied some of the cases
tried under it, and I know that some of the most loved of India’s patriots have been
convicted under it. I consider it a privilege, therefore, to be charged under that section.
I have endeavoured to give in their briefest outline the reasons for my disaffection. I
have no personal ill-will against any single administrator, much less can I have any
disaffection towards the King’s person. But I hold it a virtue to be disaffected towards a
Government which in its totality has done more harm to India than previous
systems. India is less manly under the British rule than she ever was before. Holding
such a belief, I consider it to be a sin to have affection for the system. And it has been a
 precious privilege for me to be able to write what I have in the various articles tendered
in as evidence against me.”
 The act faced judicial cut in the early days of independence itself. Romesh Thapar
case, in which the Madras government, after declaring the Communist Party illegal,
banned the left-leaning magazine Crossroadsfor being overly critical of the Nehru
government. The court held that banning a publication because it would endanger public
safety or public order was not supported by the constitutional scheme since the
exceptions to 19 (1) (a) were specific and had to entail a danger to the security of the
state. The second case related to an order passed by the chief commissioner, Delhi,
asking the RSS mouthpiece Organiser to submit all communal matter and material
related to Pakistan to scrutiny. Nehru’s government decided to amend the Constitution
(1st constitutional amendment), inserting the words ‘public order’ and ‘relations with
friendly states’ into Article 19 (2); and the word ‘reasonable’ before ‘restrictions’, as a
safeguard against misuse by the government.
 Ram Nandan versus State, 1958, the Allahabad HC held Section 124A unconstitutional
citing it restricts the fundamental freedom of speech. But this was overturned in 1962
Kedarnath Singh versus State of Bihar, when it held the section valid, but added a
caveat that this section should be construed as to limit their application to acts involving
intention or tendency to create disorder or disturbance of law and order, or incitement to
violence. If used arbitrarily, the sedition law would violate freedom of speech and
expression guaranteed by the Constitution under Article 19.
 Even after such court judgements, different govt.s use this section to act against any
out-of-sync voice in the society. A peripheral glance at the background of people
charged with the section also points to this. They include activists working in the issues
like Naxalism, tribal rights, Kashmir autonomy, corruption etc., which have found
sympathisers among the masses. In 2015, a Maharashtra govt. circular also tried to quell
the dissenting voices against their government.
 It is time we followed the lead of modern constitutional democracies such as the United
Kingdom, the US, and New Zealand who have severed anti-sedition laws from the law
books.

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Summary

Criticism against the government policies and decisions within a reasonable limit that does
not incite people to rebel is consistent with freedom of speech and expression. Currently the
section is slapped against any discording entity, without any fairness. It is this grey area,
which needs to be corrected. Only when it amounts to an incitement to violence, such
sections should be brought in

SEDITION AND INDIAN

CONSTITUTION – A SNEAK
PREVIEW
India is a democratic country and it sure does include hateful expressions as
per the article 19 of Indian law with certain terms and conditions or say
restrictions. Under it comes Sedition. Having said that many a times the
concept itself is misunderstood, thus creating and image that sedition means
political dissent. It is all underlined in the section 124 A wherein, whenever
there is an act representing non affection towards the government in Power, it
is considered as sedition.
There have been quite a number of notable cases since the amendment of
the act, starting from long back in 1892, there after in 1950 and recently in
2014. While in the first case that was registered between a man called
Jogendra Bose & Queen Empress, the word ‘sedition’ was conveniently
removed in order to interpret against Bose as ‘in the state security interest’ as
per article 19(2). Though after India’s independence the picture changed and
when a case came up between Romesh Tapar & Madras Government in
regard to imposing a ban on the magazine circulation that could potentially
create law and order issues within the public, the results showed changes.
Announced in favor of Romesh Thapar, the judge stated that law cannot be
used to ban ones freedom to speak unless it has a tendency to create any
disorder or violence in the society.

There are a few changes that were made by the court of law in India in order
to emphasize the fact that law is a servant to humankind and not an
obstruction, and therefore has to be used in the interest of the public. This
was when a case was registered under 124 (A) Bihar v/s Arnesh Kumar
wherein the Supreme court created and issued certain guidelines that needed
to be followed before making any kind of arrest. It stated that an arrest could
not be made merely on the basis on a complaint under 124A.

Thus, in a nutshell whenever the section 124 (A) act of the Indian judicial law,
subject to article 19(2) applies, one can be prosecuted only if it stirs people
towards violence against the existing government in order to overthrow it or
affects the security of the state in anyway. Any other speech otherwise,
cannot be banned.