SECTION 124A of the Indian Penal Code (IPC), dealing with sedition, has an interesting history. It did not form part of the IPC originally, when it was enacted in 1860, although it was proposed to be included by the draft prepared by the Indian Law Commissioners in 1837. It was omitted from the IPC for some unknown reason. In 1870 it was inserted by the IPC (Amendment) Act. This provision was later on replaced by the present Section 124A by an amending Act of 1898.
The difference between the old Section 124A and the present one is that in the former the offence consisted in exciting or attempting to excite feelings of disaffection, but in the latter bringing or attempting to bring into hatred or contempt the Government of India has also been made punishable.
Section 124A now reads as follows: 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.
Explanation-1: The expression disaffection includes disloyalty and all feelings of enmity.
Explanation 2: Comments expressing disapprobation of the measures of the government with a view to obtain their alteration by lawful means, without exciting or 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.
Indeed, the Supreme Court came very close to hold this provision unconstitutional in Kedarnath vs The State of Bihar (AIR 1962 SC 955). The court, in this case, considered two possible interpretations of this provision. It held that if sedition is understood to mean incitement of disorder or tendency or likelihood of public disorder or reasonable apprehension thereof, the section will lie within the ambit of permissible legislative restrictions mentioned in clause (2) of Article 19, which guarantees freedom of expression.
If, on the other hand, it is to be held that even without any tendency to disorder or intention to create disturbance of law and order by the use of words, written or spoken, which merely create disaffection or feelings of enmity against the government the offence of sedition is complete, then such an interpretation would make the section unconstitutional.
Consistent with the legal principle that the court should prefer an interpretation which would render a provision constitutional, the court held that 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.V. Venkatesan