LITERATURE REVIEW

LAW OF SEDITION

Submitted to:

Professor Dr. K. V. K. Santhy

Faculty of Criminal Law

Submitted by:

Aaryan Wasnik

Year 1, Semester 2

Section A, Roll no. 61

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 CONTENTS
CONTENTS ..................................................................................................................................................... 2
INTRODUCTION ............................................................................................................................................. 3
Summary of the Articles................................................................................................................................ 5
Political Speech and Sedition .................................................................................................................... 5
Free Speech – Sedition: Reflections and Transitions ................................................................................ 8
‘Modernizing the Crime of Sedition’ ....................................................................................................... 10
Analysis and Review .................................................................................................................................... 12

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 INTRODUCTION

It is the law of sedition which is, perhaps, one of the most debated topics of criminal law. The
criminal justice system across the world has evolved the law of sedition which went through
protests and movements by the general people of the country to bring it to the form that it
currently is.

Sedition is a crime which is very similar to, but falling short of Treason. Sedition is derived from
‘Seditio’ which means ‘a revolutionary separation and dissent.’ Sedition is defined as the act of
attempting to incite by words, deeds or writing with the intent to cause violent discord in the
society against the government. This act is considered to be highly transgressional and the
offender may be punished for a term in prison for a length or fine or both. However for
convicting a person for sedition, his evil consequences should be felt over a considerable area or
a section as a bad example that would incite violence against the said authority.

The establishment and conviction of the crime of sedition is a little different and diverted
between countries like England, America, Australia, India etc. Some Country’s law of sedition
requires intention to be an essential element in constituting the crime of sedition.

This paper discusses and therefore compares the codification and prosecution of the law of
sedition in different countries. The researcher will be reviewing three articles on the law of
sedition and analyze them to lay down important elements and clashes between the lineage of
law of sedition in these countries.

The Articles reviewed are 1) Political Speech and Sedition by Sir Geoffrey Palmer1, 2) Free
Speech, The People's Darling Privilege: Struggles for Freedom of Expression in American
History2 by Michael Kent Curtis and 3) ‘Modernizing’ the Crime of Sedition?3 By L.W. Maher.

The researcher also notes that the articles are based about the sedition laws in foreign countries.
Hence, while attempting the review of these selected articles the researcher will also try to bring

1
Palmer QC, Sir Geoffrey, Political Speech and Sedition (2009). Victoria University of Wellington Legal Research
Paper Series Palmer Paper, No. 51.
2
Michael Kent Curtis. Free Speech, the People's Darling Privilege: Struggles for Freedom of Expression in
American History, Duke University Press (2000).
3
L.W. Maher, ‘Modernizing’ the Crime of Sedition?, Labour History, No. 90 (May, 2006), pp. 201-209, Liverpool
University Press.

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in the Indian scenario of the law of sedition in this paper along with filling the gaps of the
incomplete arguments of the articles. It is the primary objective of the researcher to bring into
notice the evolution of the law of sedition from its rigid nature in the beginning to a more
flexible and tending towards a positive free speech of the public.

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 Summary of the Articles

Political Speech and Sedition

This article discusses the reform of the law of Sedition in New Zealand by repealing the
provisions of sedition law from its Crimes Act 1961. The article discusses how the history of
sedition laws in different jurisdiction and perhaps the similarities in the history of sedition laws
in New Zealand led to the ultimate removal of this law. The repeal was successful by the
amendment which was passed with the royal assent.4 A similar amendment was proposed in the
year 1989 but did not pass for a variety of unconnected reasons. But recently the law commission
recommended that this part (sedition law) of the crimes act is where reform is both necessary and
straightforward.

Understanding the English law on sedition will benefit the recent repeal of the New Zealand’s
law of sedition. There is some discrepancies and uncertainty about the term sedition and its
appropriate meaning between prosecutions. Perhaps, Prosecution stumbled upon a set of
narratives which ranged between strongly expressed dissent which was political in nature and
those who had the clear intention are whose act directly incited violence in the said region
against the constituted authority. The English statute on the law of sedition, law of treasons 1351
defines many hostile actions against the king to be prosecuted as treasonable. The definition or
scope of the offense expanded in the reign of King Henry VIII.

The Prosecution of Crime of sedition was made wider by the decision of a case 5 by Star chamber
Court in 1606 which made possible the prosecutions of common public who used words that
urged violence or protests against the authorities of the government or public officials or
government institutions. The seditious offences were defined as the speaking or publishing by
either words or deeds to incite contempt, violence or hatred for the officials in authority. This
happened in England after three centuries after the Star Chamber court judgment. It was also
justified in a English case of R v Tutchin.6

The libel act was passed (1792) which made a provision that the issues should be decided by the
jury as opposed to the earlier practice where judges decided the issues on sedition. This was said

4
Crimes (Repeal of Seditious Offences) Amendment Bill 2007, No 120-1.
5
De Libellis Famosis (1606) 5 CO Rep 125a, 251.
6
R v Tutchin, (1704) 14 State Trials (OS) 1096, 1128.

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to be a constitutional reform and which is still in practice. A liberal democratic leaning
government in the nineteenth century transformed views of common public who then demanded
that people should be allowed to freely express criticism of the government, these views and
hence changes resulted in tightening (compressing the width) of the sedition laws.

There was a general breeze of acceptance of the notion that government or sovereign is similar as
that who is present to serve the needs of the common public rather than a great superior authority
who could do no wrong. Sir James Stephen commented on such issue and said, ‘no
condemnation of the government, without direct provocation of disorder and violence, would be
considered a seditious libel.’7 Sedition was only considered to be an act of incitement or
encouraging the revolt against the government rather than actual revolt itself in the nineteenth
century. Sir James Stephen defined Seditious intention as mere intention to incite violence
against the sovereign authority, which was approved by the court in the case R v Burns.8

However, sedition is still considered an offense punishable by law and mentioned as recently as
1991 by the High courts.9 It was prescribed that the words should be used with the intention to
achieve other than but along with the intention to cause violence.

In the philosophic interview, the 1644 speech by John Milton appeals to parliament for the
liberty from pre-publication censorship of literary writings. He argues that such step would be
‘fore mostly to the hindrance of all learning and to discontinuation of spreading truth’, “when
complaints are freely heard, deeply considered and speedily reformed, then is the utmost bound
of civil liberty attained that wise men look for.”10 J.S. Mill’s essay On Liberty11 also had
remarkable importance on freedom of expression. There were opposing views as well who
opined that the law of sedition could be regulated as regulation a lighting a fire or shooting a
gun. However, they argued that the United States First Amendment protects the freedom that is
the freedom of self-government.12

7
Sir James Stephen, A History of the Criminal Law of England, (London 1883), Vol 2, 375.
8
R v Burns, (1886) 16 Cox CC 355, 377.
9
R v Chief Metropolitan Stipendiary Magistrate: Ex Parte Choudhury [1991] 1 QB 429
10
J. Milton, ‘Areopagitica: A Speech for the Liberty of Unlicensed Printing’ to the Parliament
of England in 1644, and J Milton Prose Writings (1958) 145.
11
J S Mill ‘On Liberty’ in Three Essays (1991) 14, 21.
12
A Meiklejohn ‘The First Amendment is an Absolute’ [1961] Supreme Court Review 245,
249.

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Thus, we can identify four validations for the value of freedom of speech.13 “The prominence of
discovering truth; the significance of citizens participating in democracy; the significance of free
speech as an characteristic of each individual’s right to self-development; and a disbelief or
doubt of government that provides checks and balances to the power of political leaders.”14

New Zealand’s effort to reform Law on Sedition is inspired from the United States first
amendment. Draws Inspiration from the provision that: “Congress shall make no law …
abridging freedom of speech or of the press.” The case New York Times v Sullivan15 holds
mens
importance as it held that actual rea has to be proved by the authority for suing for a
defamatory falsehood statement made by and person and cannot award damages unless proved. It
was significant also for its positive contribution in the way of civil rights movement and not only
for the free speech and anti-sedition movement. Prof. Harry Kalven said, “The central meaning
of the First Amendment is that seditious libel cannot be made the subject of government
sanction.”16Sedition thumps at the heart of the democratic government and the notion of political
freedom extinguishes when government can use its supremacy and its courts to subjugate its
criticizers.

In New Zealand, early attempts to repeal the sedition laws were quite unsuccessful. Until 1993,
the offence of criminal libel was defined as ‘any person by either spoken or written causes harm
to the reputation of the government office or any public official by inciting other person to cause
violence or protests against the said authority causing injury in his process of functioning in his
office.’

Most compelling reason for abolition of the criminal libel in 1977 by the committee was because
they thought and reasoned that the civil action present in the country against the acts of
defamation or related to the crime in picture was already enough to convict these offenders and
the criminal recourse was unnecessary.17 However the committee on law reform accepted the
contention by the civil liberties council that the endorsements of the criminal law against

13
Eric Barendt, Freedom of Speech, (2 ed, Oxford University Press, 2005), 6.
14
Supra note 1.
15
New York Times v Sullivan, 376 US 254 (1964).
16
Harry Kalven Jr. ‘The New York Times case: A note on the Central Meaning of the First Amendment’ [1964]
Supreme Court Review, 191, 209.
17
Report of the Committee on Defamation Recommendations on the Law of Defamation
(December 1977) 103.

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defamation were detrimental as they incorporated freedom of speech and public denunciation.
The then newly elected government leader sir Robert Muldoon was believed to have actually put
the committee’s report in the cupboard and didn’t look at it in the course of his administration.

The Criminal Libel was finally repealed in New Zealand in the year 1992. The Sedition Law in
New Zealand was inherited from that of the English Common Law, which was set out in the
Crimes Act 1961. Sedition offences punished speech and mere speech or political speech was
enough to prosecute a person under the sedition law.

Law of sedition was a tool of political subjugation. Charges of seditious offences were laid down
at the situations of political unrest and wars. There were many cases where liability was laid
down for criticisms of particular legislations or policies of the government. These situations hint
towards the abuse of the laws by the govt. for their own good in the term. While the accused
were not really advocating public violence but only resorting to violence as a response to the
violent government reaction itself. Ex. Maori’s trying to protect their lands.

The Law Commission, hence, concluded that the seditious offences were used in America and
also in foreign countries to prosecute and convict speech that might be provocative, intense and
irrational, but only where there was a strong proof of intention on the part of the accused to incite
immediate conditions of violence. State should have the right to prosecute and condemn
seditious offences, but only when a criminal nature act or protest is the likely outcome or
consequence of the act in scenario with the proof of intention.

Kalven exclaimed that the presence or absence of the law of seditious offences in the criminal
law of the country defined the society. It still holds true today. It is more substantial to shield the
crucial elements of a liberal democracy than wear away certain freedoms in the name of
‘national security’. Freedom of expression is one of those crucial and needed elements. Author
upholds the elimination of sedition law and with it, emancipation of the law of defamation and to
make possible the criticisms to the government officials to make them realize about where they
go wrong.

Free Speech – Sedition: Reflections and Transitions

This article is based on the American movement of freedom of free speech and free press with
consideration with the concurrently existing anti-slavery movement in the 18th and 19th century.

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The conflict between states’ rights and the federalists was also in the scenario with section
groups like Jeffersonian republicans and federalists.

Commentators in America understood the battle over sedition act as a crisis of free speech, civil
liberty, and democratic government. Jeffersonian critics of sedition act invoked both state’s right
and broadly protective idea of free speech for Americans. Many Republicans were invoking
states’ rights to protect free speech from oppressive national legislation.

Federalists Alexander Hamilton and Judge James Kent were considered the true free speech
heroes because their contribution to the Jeffersonian case. They contributed a test for libel that
was widely adopted in the states though it was hardly a “liberal” free speech test. In federal
courts all the prosecutors were federalists appointed by President Adams (the man the
prosecutions sought to protect from criticism), all the marshals who would pick the jury were
also appointed by President Adams; and the judges were typically federalists, and many of them
had been appointed by President Adams

The no federal power and states’ rights argument was deployed between 1798 and 1800 to
protect free speech. Scholars complained that the sedition act was a violation of the basic right or
privilege of Americans to freedom of speech and was incompatible with the representative
government. When Jeffersonian newspapermen were prosecuted for common law seditious libel
the defense of exercising states’ rights was irrelevant.

Otis tried to make a distinction between fighting for free speech and abolition of slavery and
warned that abolition of slavery would result in giving rights to those who had none. The
sedition act debate was both about the scope of free speech in a democracy and about the scope
of national power.

Important case before Learned Judge James Kent was People v Croswell. Kent was one of the
judges in the court hearing this case. Kent Advocated the principle that truth for good motives
and justifiable ends was protected expression. This principle was proved influential and was
embraced in many states in the nineteenth century.

In an opinion for People v Croswell, Kent insisted that the crime of libel required intent and
intent was for the jury to decide. Truth of good intention and justifiable ends was evidence of

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good intention and essential to the liberty of the press. However he rejected the notion of a
totally unshackled press

The Author appreciates Kent’s ‘Truth for good motives and justifiable ends’ and denotes it as a
considerable advance over common law rules of seditious libel, which held truth to be no defense
and publication the only issue for Jury. In 1812 case of United States v. Hudson and Goodwin,
the decision of this case ended the prospect of federal prosecutions for common law of seditious
libel. Subsequently, State seditious libel became less and less common, and eventually came to
an end.

Reflections from the events by the author-

Sedition act was a paradigm case that highlights the central meaning of free speech in a
democracy. Harry Kalven called sedition act the Anti-thesis of meaningful protection of free
speech. Freedom of speech and political liberty are irreconcilable with the standard of crime of
sedition.

Crux of the offense of sedition was the assertion that support and denunciation of public policy
and conduct of public authorities could be penalized as a crime. “The crime of sedition
controverts the idea that “we the people” ultimately governs, because it pursues to guard public
policies, government officials, and major social institutions from public debate and criticism.”18

Free speech and democracy were not simply won in the battle over the Sedition Act. They had to
be struggled for again and again and again. Not all the struggles were successful.

‘Modernizing the Crime of Sedition’

This Article revolves around the sedition laws in the Australian criminal law. The revision of
Sedition laws in Australia by the amendment in the Schedule 7 of the Anti-Terrorism Act.19

It is believed that the very objective and the application of the law of sedition have been to
deteriorate political dissent. “It is literally a ‘political’ crime.”20

18
Supra note 2.
19
Hansard (House of Representatives), 29 November 2005, pp. 43-107.
20
Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends, Princeton University Press,
Princeton, NJ, 1961.

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The law of sedition had been obsolescent, if not obsolete from establishment of Commonwealth
of Australia i.e. 1901 till recently i.e. 2005. The author says that the prevailing law of sedition is
wholly self-defeating because once it is established that a seditious offence has been committed,
every person can use the seditious statement made by the offender because it is now a part of a
court’s case report. This situation has not been unprecedented and yet approved in Australia.

This amendment of rewriting sedition law has resurrected an obsolescent law. Even if there are
no cases or trials under the new amended law, the amendment will have an alarming effect on the
eccentric ideas of the burning political nature of the country. “The mere existence of the law
enables it to be put to other uses, most notably as a vehicle for obtaining and executing search
warrants which can be used for oppressive collateral purposes.”21

“Australian interests are at threat from terrorists, that a terrorist attack in Australia is feasible and
could well occur, and that it is necessary to continue the work of identifying people intent on
doing harm.”22

Government’s stand for renaissance of the law of sedition is unpersuasive on 3 counts -

1. The government, in the case of intrinsic values such as freedom of expression and
individual liberty, is duty bound to recognize specific harm in order to justify the
restriction put on such values.
2. The author is skeptical about the intention of schedule & with regards to penalizing
offender. If yes, then the advocators for it sh0uld be able t0 chalk out deficits in the
existing law on that issue. The law of Sedition has been existed along with the various
other prohibitions on criminal law on violence, incitement to violence, etc.23 If at all there
is a gap between the existing criminal law and current, the government and state
governments have ignored to correct it. Hence, it makes no rightminded sense to bring
back such an amendment to the proviso embodied in schedule 7 to rectify such
deficiency.
3. The very language of the provision in schedule suggests clearly that when you apply the
term ‘sedition’ to any crime, it will be a speech related crime which does not guarantee

21
Supra note 3.
22
Supra note 3.
23
Griffith, 'Sedition, Incitement and Vilification'.

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 that it might carry with it the potential to incite violence against the said authority. The
use of abstraction ‘good faith’ makes matters worse.

In the United States, First Amendment was given full expressi0n. Even speech where people
appealed to overthrow the government in power were also protected by the freedom enclosed in
the first amendment ‘except where extreme situations of lawless behavior were incited.’24 It is
the question of Proximity and degree.25 Hence, having mentioned all these events from the
history, it demonstrates us that an open, free and c0nfident C0untry like Australia d0es n0t need
the Schedule 7 law 0r anything resembling it.

Analysis and Review

Law of sedition in the history of the major Democracies is a heated topic for debate. The New
Zealand’s new amendment made possible the repeal of the existing law of sedition the author
considered the repeal as a reform in the legal course of New Zealand. With tracing the history of
sedition laws to the English common law the author exclaimed that the public criticism of the
government should not be curbed unless directly inflicting incitement for violence. The author
says it is essential to safeguard the freedoms in the democracy like freedom of expression.

The second article on free speech and sedition is purely based on the American movement of
anti-slavery and related free speech. There were people like Otis who opposed the free speech for
the common people of the country saying that counter action will result in giving rights to those
who had none. However, the author is of the view and has cited many scholars who opposed
slavery and advocated for free speech for people and press. The author contends that the law of
sedition contradicts the very principle of the first amendment and the ‘we the people’ doctrine.

‘Modernizing’ the crime of sedition is an article based on the new amendment of sedition laws in
the Australian criminal law. Calling the offence of sedition as a political crime, the author
encounters certain loopholes in discussing the new passed amendment. The author exclaims that
the government should protect the fundamental values of the democracy like freedom of speech
and not curb it by this legislation. Author says that the unnecessary legislation regarding the

24
Brandenburg v Ohio 395 US 444, 447 (1969).
25
Schenck v US 249 US 47 at 52 (1910).

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seditious offences has linked with it other indirect motives to be achieved by the government and
lastly, he argues that the language of the legislation is ambiguously articulated creating vague
gap between the offences.

While discussing the sedition law of overseas jurisdictions the Indian version of it is also in a
political debate. Section 124A of the Indian Penal Code26 encompasses the offence of sedition.
The recent debate is over the sedition case against the student body presidents and members of
the JN University, Kanhaiya Kumar, Umar Khalid, etc. While talking about this issue many legal
practitioners and politicians have expressed counter opinions on this issue for instance Kapil
Sibal said “There is no need for sedition law in today’s time, it is colonial law.”

This case is an example of how government uses its power and sedition as a tool to suppress the
political criticism as also discussed in an article discussed above. Even if the convictions do not
happen, the mere charge for sedition to the people raising voices is a way in which government
makes us feel its presence as a superior authority. The researcher while concluding the paper
supports the views presented in the articles with regard to scrapping the Law of Sedition from the
context of Criminal Law.

26
Indian Penal Code, (Act No. 45 of 1860).

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