BENCH
The case was unanimously decided by a constitutional bench constituting Hon’ble Mr. Justice Bhuvneshwar Prasad Sinha, Hon’ble Mr. Justice S.K. Das, Hon’ble Mr. Justice A.K. Sarkar, Hon’ble Mr. Justice N. Rajagopala Ayyangar and Hon’ble Mr. Justice J.R. Madholkar.
FACTS IN BRIEF
- That the appellant, Kedar Nath Singh, a member of the Forward Communist Party in Bihar, accused the Congress of corruption, black-marketing and tyranny and targeted Vinobha Bhave’s attempts to redistribute land. He talked about a revolution that would overthrow capitalists, zamindars and Congress leaders. Many parliamentarians were referred to as “dogs” and Congressmen were referred to as “goondas”. He made the following speech “To-day the dogs of the C. I. D are loitering round 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 and seated them on it. To-day these Congress goondas are sitting on the gaddi due to mistake of the people. When we drove out the Britishers, we shall strike and turn out these Congress goondas as well. These official dogs will also be liquidated along with these Congress goondas. These Congress goondas are banking upon the American dollars and imposing various kinds of taxes on the people to-day. The blood of our brothers- mazdoors and Kisanas is being sucked. The capitalists and the zamindars of this country help these Congress goondas. These zamindars and capitalists will also have to be brought before the peoples court along with these Congress goondas.
(b) “…the Forward Communists Party will expose the black deeds of the Congress goondas, who are just like the Britishers. Only the colour of the body has changed. They have to-day established a rule of lathis and bullets in the country…”
(d) It will be a mistake to expect anything from the Congress rulers. They (Congress rulers) have set up V. Bhave in the midst of the people by causing him wear a langoti in order to divert the people’s attention from their mistakes. To-day Vinova is playing a drama on the stage of Indian politics. Confusion is being created among the people. I want to tell Vinova and advice his agents, “you should understand it the people cannot be deceived by this illusion and fraud of Vinova”. I shall vinova not to become a puppet in the of the Congress men. These persons, understand the Yojna-of Vinova, realise that Vinova is an agent to the Congress Government.
(e) I tell you that this Congress Government will do no good to you.
(f) I want to tell the last word even to the Congress Tyrants, “you play with the people and ruin them by entangling them in the mesh of bribery, black-marketing and corruption. To-day the children of the poor are hankering for food and you Congress men are assuming the attitude of Nawabs sitting on the chairs…” - That the accused was convicted before a Magistrate in the Trial Court under Section 124A and 505 of the Indian Penal Code and sentenced to one-year imprisonment for delivering a seditious speech and intending to disturb public tranquility but acquitted him of the charge under s. 153A.
- The convict appealed to the High Court of Patna, which upheld the convictions and the sentence and dismissed the appeal. In the course of his judgment, the learned Judge observed that the charge against the appellant was nothing but a vilification of the Government; that it was full of incitement to revolution and that the speech when taken as a whole was certainly seditious. It is not a speech criticizing any of its measures. He held that the offences both under sections 124A and 505(b) of the Indian Penal Code had been made out.
- That the case then came in an appeal before the Supreme Court wherein a new ground was added by the appellant, challenging the constitutionality of Section 124A and 505 in view of Article 19 of the Constitution.
- That the case first went to a Division Bench in 1959, and then a Constitutional Bench in 1960 because of the constitutional question that arose. In 1961, the Constitutional Bench of the Supreme Court examined this matter along with a bunch of related appeals from Uttar Pradesh.
CHARGES FRAMED
1. That the accused brought or attempted to bring into hatred or contempt or excited or attempted to excite disaffection towards the Government established by law in the Indian Union and thereby committed an offence punishable under section 124A of the Indian Penal Code
2. That the accused with intent to cause or which was likely to cause fear or alarm to the public whereby any persons might be induce to commit an offence against the State of Bihar and against the public tranquility, and thereby committed an offence punishable under section 505(b) of the Indian Penal Code
ISSUES INVOLVED
1. Whether the sections 124A and 505 of the Indian Penal Code are ultra vires in view of the provisions of Article 19(1)(a) of the Constitution?
2. Whether the intention or tendency to create disorder, or disturbance of law and order, or incitement to violence is required to constitute the offence of sedition?
ARGUMENTS BY THE APPELLANT
That both the sections 124A and 505 IPC are ultra vires as they contravene the provisions of Art. 19(1)(a) of the Constitution. A speech may disturb public order or it may not, but both are made punishable under Section 124A. The section hits speeches of both varieties permissible speeches and impermissible speeches.
ARGUMENTS BY THE RESPONDENT
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. The correct meaning of the provisions of s. 124A in the context of the present set up and the Constitution is that given by the Federal Court in Niharendu Dutt’s case, and not the meaning given to them by the Privy Council in Bhalerao’s case. that incitement to violence or a tendency to disturb public order is a necessary ingredient of s. 124A
LAW ON THAT POINT
The section corresponding to s. 124A was originally s. 113 of Macaulay’s Draft Penal Code of 1837-39, but the section was omitted from the Indian Penal Code as it was enacted in 1860.
The Federal Court, made the following observations in the case of Niharendu Dutt Majumdar v. The King Emperor[1]: “Words, deeds or writings constitute sedition, if they have this intention or this tendency of attacking or subverting it, seek to disturb its tranquillity, to create public disturbance and to promote disorder, or who incite others to do so if they seek, to bring Government into contempt. This is not made an offence in order to minister to the wounded vanity of Government, but because where Government and the law cease to be obeyed because no respect is felt any longer for them, only anarchy can follow. Public disorder, or the reasonable anticipation or likelihood of public disorder, is thus the gist of the offence. The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that is their intention or tendency.”
This statement of the law was not approved by their Lordships of the Judicial Committee of the Privy Council in the case of King-Emperor v. Sadashiv Narayan Bhalerao [2] and they laid down that incitement to violence was not necessary ingredient of the Crime of sedition as defined in that law.
Decisions laid down in Romesh Thappar v. The State of Madras[3] and Brij Bhushan v. The State of Delhi[4] were also deliberated upon by the Supreme Court
JUDGMENT
The Supreme Court distinguished clearly between disloyalty to the government and commenting upon the measures of the government without inciting public disorder by acts of violence. The Court upheld the constitutionality of the sedition law, but at the same time curtailed its meaning and limited its application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence. The conviction of the appellant by the High Court was upheld and the appeal was dismissed. The judges observed that if the sedition law was to be given a wider interpretation, it would not survive the test of constitutionality. The Court declared section 124A to be intra vires the Constitution in view of Article 19(2). It held that such a restriction is necessary for the safety and integrity of the State. Also, the court limited the operation of Section 124A only to such activities as come within the ambit of the observations of the Federal Court, that is to say, activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace. that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression and not be penal under Section 124A. It is manifest that each one of the constituent elements of the offence under s. 505 has reference to, and a direct effect on, the security of the State or public order. Hence, these provisions would not exceed the bounds of reasonable restrictions on the right of freedom of speech and expression. It is clear, therefore, that cl. (2) of Art. 19 clearly save the section from the vice of unconstitutionality. In other words, any written or spoken words, etc. which have implicit in them the idea of subverting Government by violent means, which are compendiously included in the term “revolution”, have been made penal by the section in question. But the section has taken care to indicate clearly that strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means would not come within the section. Similarly, comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence.
CRITICAL APPRAISAL
There are no two ways about the fact that every freedom has its restrictions, including the freedom of speech. Such law is imperative for the security of state and the Court has rightly restricted it to acts which have a tendency or intention of inciting violence or disrupting public law and order. However, there can be no justification for the existence of any provision in the Indian legal system that penalizes peaceful dissent and legitimate criticism.
The case has been rightly decided by the Hon’ble Supreme Court in upholding the validity of Section 124A but restricting its scope. The Supreme Court said that if used arbitrarily, the sedition law would violate freedom of speech and expression guaranteed by the Constitution under Article 19. However, even after this judgment of the Supreme Court, the provision continues to be used blatantly by the government to stifle the voice of anybody who tries to dissent, irrespective of whether the alleged seditious act or words constitute a tendency to cause public disorder or incitement to violence such that in recent cases which have been mentioned in the follow up.
RECENT CASES
1. Bankim K. Kulshrestha vs Union Of India And Ors. on 2 July, 2019
Swami Sakshi Maharaj – A sitting member of parliament belonging to Bharatiya Janata Party (BJP) re-nominated by BJP to contest the election from U.P. in 2019 elections – was charged u/s 124A IPC for making patently seditious comment that “after 2019 elections, there won’t be any in 2024”- published and shown in print and electronic media while he owes his membership of Parliament to his oath to Constitution of India and while election happens to be the only constitutional process under democracy to install a legitimate government. Alongwith him, BJP was also implicated for re-nominating Swami Sakshi Maharaj as implying concurrence with his statements – thus becoming willing accomplice in an attack on our Constitution. Election Commission of India was also impleaded for not acting against Swami Sakshi Maharaj and BJP whose public utterances and conduct in relation to the sanctity of electoral democracy have been incompatible with the requirements under Constitution.
The Court held that the petitioner miserably failed to plead any reasonable basis much less justification to infer that the prevalent political climate at the time the statement was made coupled with the context in which it was made was such that the same could be interpreted by any reasonable man to be intended to incite violence or disturb law and order and create disorder. Further the Court ruled that the ingredients of commission of offence of sedition under Section 124A may be present if the action alleged incites or tends to incite violence in a reasonably normal person and the reaction of a hyper-sensitive individual would not be sufficient to attribute culpability to the maker of the statement complained of. the basic ingredient for an offence under Section 124A is to bring or attempt to bring hatred or contempt or to excite or attempt to excite disaffection towards the nation, which is wanting in the present case and thus the petition was dismissed and the charges dropped.
2. Sanskar Marathe vs The State Of Maharashtra And Anr[5]
That Assem Trivedi, a political cartoonist and social activist, was alleged that he through his cartoons, not only defamed Parliament, the Constitution of India and the Ashok Emblem but also tried to spread hatred and disrespect against the Government and published the said cartoons on `India Against Corruption” website, which not only amounts to insult under the National Emblems Act but also amounts to serious act of sedition.
The court held that the provisions of section 124A of IPC cannot be invoked to penalize criticism of the persons for the time being engaged in carrying on administration or strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means, reiterating Kedar Nath’s case. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comments, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder. The section aims at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. The court laid down that cartoons or caricatures are visual representations, words or signs which are supposed to have an element of wit, humour or sarcasm and after seeing the seven cartoons in question drawn by the third respondent, the court did not find any element of wit or humour or sarcasm rather they were full of anger and disgust against corruption prevailing in the political system. But for that reason, the freedom of speech and expression available to the respondent to express his indignation against corruption in the political system in strong terms or visual representations could not have been encroached upon when there is no allegation of incitement to violence or the tendency or the intention to create public disorder. Thus, the allegations of sedition against the cartoonist Aseem Trivedi were dropped as they did not have any tendency to incite violence.
[1] 1942 F. C. R. 38
[2] (1944) 46 BOMLR 459
[3] 1950 AIR 124
[4] 1950 AIR 129
[5] 2015 Cri LJ 3561.