How sedition crept into the framing of the Constitution
While in their Draft Constitution, the Constitutional Framers included ‘sedition’ and the term ‘public order’ as a basis on which laws could be framed limiting the fundamental right to speech (Article 13), in the final draft of the Constitution though, both ‘public order’ and sedition were eliminated from the exceptions to the right to freedom of speech and expression (Article 19 (2)).
Commenting on this omission many years later, Justice Fazl Ali said:
The framers of the Constitution must have therefore found themselves face to face with the dilemma as to whether the word "sedition" should be used in article 19(2) and if it was to be used in what sense it was to be used. On the one hand, they must have had before their mind the very widely accepted view supported by numerous authorities that sedition was essentially an offence against public tranquillity and was connected in some way or other with public disorder; and, on the other hand, there was the pronouncement of the Judicial Committee that sedition as defined in the Indian Penal Code did not necessarily imply any intention or tendency to incite disorder.
In these circumstances, it is not surprising that they decided not to use the word "sedition" in clause (2) but used the more general words which cover sedition and everything else which makes sedition such a serious offence. That sedition does undermine the security of the State is a matter which cannot admit of much doubt. That it undermines the security of the state usually through the medium of public disorder is also a matter on which eminent Judges and jurists are agreed. Therefore, it is difficult to hold that public disorder or disturbance of public tranquillity are not matters which undermine the security of the State (Brij Bhushan And Anr. v. The State Of Delhi 1950 ).
In the debates that surrounded the First Amendment to the Indian Constitution, Nehru came under severe flak from opposition leaders for compromising the right to free speech and opinion. Stung by two court decisions in 1949 that upheld the right to freedom of speech of opinions from the far left and the far right of the political spectrum, Nehru asked his Cabinet to amend Article 19(1) a.
The two cases that prompted Nehru to do this were the Romesh Thapar case, in which the Madras government, after declaring the Communist party illegal, banned the left leaning magazine Crossroads as it was very 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 much more 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 inserting the words ‘public order’ and ‘relations with friendly states’ into Article 19(2) and the word ‘reasonable’ before ‘restrictions’, which was meant to provide a safeguard against misuse by the government. In the debates that followed in Parliament, Nehru clarified that he was not validating existing laws like sedition through this amendment.
While addressing the Parliament on the Bill relating to the First Constitution of India Amendment 1951, Nehru said:
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 anv body of laws that we might pass. The sooner we get rid of it the better. We might deal with that matter in other ways, in more limited ways, as every other country does but that particular thing, as it is, should have no place, because all of us have had enough experience of it in a variety of ways and apart from the logic of the situation, our urges are against it.(Vide Parliamentary Debates of India, Vol. XII, Part II (1951) p. 9621 cited in Para 81, Ram Nandan v State AIR 1959 All 101, 1959 CriLJ 1)
However, the law (section 124-A) remained on the statute books after independence and was used repeatedly by both central and state governments to stifle political dissent.
For instance, in 1953, the Bihar government attempted using section 124 A against tribals agitating for a separate state, Jharkhand, where their interests would be addressed. The High Court held against the government saying there was nothing seditious in these speeches (Debi Soren And Ors. v. The State 1954 CriLJ 758).
Things came to a head in 1958, when the constitutional validity of the sedition law was challenged in a Bihar case that involved a challenge to a conviction and punishment of three years imprisonment of one Ram Nandan, for an inflammatory speech given in 1954. In this speech Ram Nandan criticised the Congress regime for not being able to address extreme poverty in the state and exhorted cultivators and labourers to form an army and overthrow the government if needed. He also accused Nehru of being a traitor for dividing the country in two (Ram Nandan v State AIR 1959 All 101, 1959 CriLJ 1).
The court overturned Ram Nandan’s conviction and declared section 124 A to be unconstitutional. Justice Desai explaining his ruling said:
I consider that exciting hatred, contempt or disaffection towards the Government may in some cases affect the security of the State as for example when a violent overthrow of the existing system of Government is advocated in the teeth of the Constitution, but not in every case and a restriction on every speech exciting such a feeling towards the Government cannot be said to be in the interests of security of the State.
Even if it be said that it is in the interests of public order or the security of the State to impose a restriction on a speech exciting a feeling of hatred etc., towards the Government, it is certainly not reasonable to impose a restriction on every such speech just because some of it may involve a threat to public order or to the security of the State.
In order to be reasonable, the restriction should have been only on a speech likely to, or having, a tendency to, disturb the public order or undermine the security of the State…..
….If a speech contains the germs of incitement to violence, they may not be completely destroyed by a final exhortation to eschew violence. If a speech has a tendency to incite to violence and also contains an exhortation not to resort to violence, it is nothing but a speech containing two contradictory tendencies, either of which may materialise and a restriction on such a speech does not become unconstitutional merely because of the exhortation.
Justice Gurtu, while agreeing with Justice Desai added:
If there is a possibility in the working of our democratic system -- as I think there is -- of criticism of the policy of Ministers and of the execution of their policy, by persons untrained in public speech becoming criticism of the Government as such & if such criticism without having any tendency in it to bring about public disorder, can be caught within the mischief of Section 124-A of the Indian Penal Code, then that Section must be invalidated because it restricts freedom of speech in disregard of whether the interest of public order or the security of the State is involved, and is capable of striking at the very root of the Constitution which is free speech (subject of limited control under Article 19(2) ).
However, this decision was overruled in 1962 by the Supreme Court, which held which the sedition law was constitutional. This case involved Kedar Nath, a member of the Forward Communist Party in Bihar, who 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 (Kedar Nath Singh v. State of Bihar 1962 AIR 955 1962 SCR Supl. (2) 769).
The trial court convicted Nath under 124A and 505B of the IPC, and sentenced him to one-year imprisonment. Kedar Nath appealed this decision. The Patna High Court dismissed his appeal, observing that the charge against the appellant was nothing but a vilification of the Government; that it was full of incitements to revolution and that the speech taken as a whole was certainly seditious.
The case was then appealed in the Supreme Court, and made its way first to Division Bench in 1959, and then a Constitutional Bench in 1960. In 1961, the Constitutional Bench of the Supreme Court examined this matter along with a bunch of related appeals from Uttar Pradesh. These appeals included that of Mohd Ishaq Ihahi, who was prosecuted for having delivered a speech at Aligarh as Chairman of the Reception Committee of the All India Muslim Convention in 1953. Another appeal was related to a meeting of the Bolshovik Party in 1954 organised in a village named Hanumanganj, in the District of Basti, in Uttar Pradesh, where the members were accused of inciting people to open rebellion against the government.
Another related case was that of Parasnath Tripathi for delivering a speech in the village Mansapur in the district of Faizabad, in 1955, in which he is said to have exhorted the audience to organise a volunteer army and resist the Government and its servants by violent means.
The Court, while upholding the constitutionality of the judgement distinguished between "the Government established by law" and "person's for the time being engaged in carrying on the administration". The Court distinguished clearly between disloyalty to the Government and commenting upon the measures of the government without inciting public disorder by acts of violence:
Government established by law" is the visible symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted. Hence the continued existence of the Government established by law is an essential condition of the stability of the State. That is why 'sedition', as the offence in s. 124A has been characterised, comes under Chapter VI relating to offences against the State.
Hence any acts within the meaning of s. 124A which have the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence.
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.
The Court went on to say:
This Court, as the custodian and guarantor of the fundamental rights of the citizens, has the duty cast upon it of striking down any law which unduly restricts the freedom of speech and expression with which we are concerned in this case. But the freedom has to be guarded again becoming a licence for vilification and condemnation of the Government established by law, in words which incite violence or have the tendency to create public disorder. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, 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 Court, has, therefore, the duty cast upon it of drawing a clear line of demarcation between the ambit of a citizen's fundamental right guaranteed under Art. 19(1)(a) of the Constitution and the power of the legislature to impose reasonable restrictions on that guaranteed right in the interest of, inter alia, security of the State and public order.
Thus the Supreme Court upheld the constitutionality of the sedition law, but at the same time curtailing its meaning and limiting its application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence. The judges observed that if the sedition law were to be given a wider interpretation, it would not survive the test of constitutionality.
(Siddharth Narrain is a legal researcher with the Alternative Law Forum, Bangalore.)