THE police in Bengaluru were recently reported to have registered a first information report (FIR) under the dreaded Section 124-A of the Indian Penal Code (IPC). They were acting on a complaint filed by the Akhil Bharatiya Vidyarthi Parishad against members of Amnesty International India. It was alleged that an event was being organised by Amnesty in Bengaluru to highlight the human rights atrocities in Kashmir, at which anti-India slogans were raised.
This is not the first time that sedition has made headlines in 2016. In February this year, a similar charge was levelled against Kanhaiya Kumar, Jawaharlal Nehru University Students Union president, for allegedly raising anti-India slogans on the university campus. Against this backdrop, a look at the history of Section 124-A might suggest that anti-India sloganeering, by itself, is insufficient to constitute 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 seditious.
For some reason, Section 113 of Macaulay’s draft did not make it into the final version of the IPC in 1860. The official explanation was that this was a clerical mistake. However, it is quite possible that Section 113 was omitted from the IPC in 1860 because it was incompatible with the contemporary law of sedition in England at the time. After all, the law codes of British India were prepared by the followers of Jeremy Bentham, who wished to enact similar codes back home in England. For them, the colony of British India was a laboratory where they could test how a code would function. They hoped that codes like the IPC would later serve as models or precedents for similar law codes to be drawn up in England itself. It is therefore plausible that the framers of the original IPC of 1860 left out Section 113 of Macaulay’s draft because it did not reflect the existing state of the law of sedition in England and because its introduction into the IPC might have come in the way of the code being used to draw up a similar statute in England.
An amendment was introduced to the IPC in 1870, and Section 113 of Macaulay’s draft was inserted into the code as Section 124-A. There is some evidence to suggest that sedition was finally made an offence in British India because the colonial government feared a Wahabi uprising.
While introducing the amendment to the Viceroy’s Council, Law Member Stephen made a specific reference to a man who had preached “jehad or holy war against Christians in India” and of how the man had been in the habit “for weeks and months and years, of going from village to village, and preaching in every place he came to that it was a sacred religious duty to make war against the Government of India”. There were eight other men in Patna, said Stephen, who had been found to be engaged in similar activities. Later, in 1898, the Lieutenant Governor of Calcutta similarly said that it was “the Wahabi conspiracy and the open preaching of jehad or religious war against the government” in 1870 that had prompted the introduction of sedition into the IPC.
Although it was the fear of an Islamic religious uprising that gave rise to the offence of sedition in British India, the first person to be convicted under Section 124-A was not a Muslim but a prominent Hindu nationalist, Bal Gangadhar Tilak. His newspaper, Kesari , had carried an article in which the Hindu king Shivaji was said to have awoken in heaven and lamented the existing state of affairs in India. “Alack! What is this?” the fictitious Shivaji was reported as having said in Kesari , “I now see with (my own) eyes the ruin of (my) country…. Foreigners are dragging out Lakshmi violently by the hand.”
Tilak was charged with sedition before the Bombay High Court, in Queen Empress vs Bal Gangadhar Tilak (1897). Justice Arthur Strachey delivered the charge to the jury in enormously broad terms. He said that sedition meant “the absence of affection”, that it meant “hatred, enmity, dislike, hostility, contempt, and every form of ill will to the government”. For Strachey, sedition also meant “every possible form of bad feeling to the government”, and the “amount or intensity of the disaffection” was “absolutely immaterial”. It was not necessary for the accused person to incite “mutiny or rebellion, or any sort of actual disturbance, great or small” in order to be convicted. In other words, the pre-1832 English law of seditious libels now became the law of sedition in India. The IPC was amended in 1898, and Strachey’s definition of sedition replaced Macaulay’s in Section 124-A.
Gwyer to Munshi
Decades later, in 1941, the Federal Court of India attempted to bring the Indian law of sedition in line with its English counterpart. A case was brought before it by Niharendu Dutt Majumdar, a member of the Bengal legislature, who had, in the words of the Federal Court, made a “violent”, “frothy and irresponsible” speech criticising the Governor and Ministry of Bengal for their inaction during the Dacca riots.
Chief Justice Maurice Gwyer adopted the post-1832 English law of seditious libels in order to interpret Section 124-A of the IPC. “The acts or words complained of,” he said, “must… either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency.” Majumdar was let off because Gwyer did not consider his speech “as inciting those who heard it… to attempt by violence or by public disorder to subvert the government”.
However, Gwyer was quickly overruled by the Privy Council in Sadashiv Narayan Bhalerao’s case, decided in February 1947, a few months before India became independent. The Privy Council rejected Gwyer’s interpretation of sedition and reiterated Strachey’s charge to the jury.
The framers of India’s Constitution decided to adopt the model of the Irish Constitution in specifically enumerating exceptions to the right to free speech. In early drafts of the Constitution that were circulated within the Constituent Assembly, “sedition” was set out as one such exception to the right to free speech.
However, on the floor of the Assembly, one of the strongest supporters of free speech, K.M. Munshi, moved an amendment to remove the word “sedition” from the exceptions. Although the historian Granville Austin considered Munshi to be one of the “strongest advocates” on the “limitation of rights”, Munshi, by contrast, mounted one of the greatest defences of the right to free speech. He argued in the Constituent Assembly that the view taken by the Federal Court in Majumdar’s case was the correct one. It was partly because of his efforts that “sedition” was finally deleted as an exception to the right to free speech in what would become Article 19(2) of the Constitution.
Shortly after the Constitution came into being, in November 1950, the Punjab High Court held Section 124-A to be unconstitutional. However, thereafter the first amendment to the Constitution was passed in 1951, and the words “public order” were inserted as an exception to the right to free speech.
Soon, in Kedar Nath vs State of Bihar (AIR 1962 SC 955), the Supreme Court held that Section 124-A was a valid restriction on the fundamental right to free speech. Even so, the court accepted the view adopted by Chief Justice Gwyer in Majumdar’s case. Kedar Nath was a communist who had made a fiery speech in Bihar, in which he said, among other things: “We believe in that revolution… which will come and in the flames of which the capitalists, zamindars and the Congress leaders of India, who have made it their profession to loot the country, will be reduced to ashes.”
It was held that Section 124-A was aimed 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”. Merely arousing “bad feelings” or feelings of enmity or hatred towards the government would not be considered seditious. Thus, Strachey’s formulation in Tilak’s case, as endorsed by the Privy Council, was finally rejected. The conviction of the appellant in this case, however, was upheld because “any written or spoken words… which have implicit in them the idea of subverting government by violent means, which are compendiously included in the term ‘revolution’”, were covered by the offence of sedition.
Thereafter, in Balwant Singh vs State of Punjab , [(1995) 3 SCC 214], the appellants had been convicted for raising slogans such as “Khalistan Zindabad” in a crowded place on the day Prime Minister Indira Gandhi was assassinated. The Supreme Court held that the “[r]aising of some lonesome slogans, a couple of times by two individuals, without anything more”, “which neither evoked any response nor reaction from anyone in the public”, was insufficient to constitute sedition, that “[s]ome more overt act was necessary”. The fact that the appellants did not intend to “incite people to create disorder” and that no “law and order problem” actually occurred was held sufficient to acquit them from the charge of sedition.
Of anti-India slogans
Policemen who investigate complaints of sedition must therefore ask themselves a simple question: Does the speech which has been called into question merely express hatred, contempt or ill will against the government, or does it incite others to commit acts of insurrection, rebellion, or public disorder? It is only when a speech falls in the latter category that it can be considered as constituting the offence of sedition.
Interestingly, a public interest petition has been filed in the Supreme Court by the non-governmental organisation Common Cause, seeking, among other things, that before any FIR is filed or arrest made by the police under Section 124-A, the Commissioner of Police or Director General of Police must certify that the test in Kedar Nath has been satisfied. Merely raising anti-India slogans, reprehensible though this may be, would by itself be insufficient to sustain a conviction under Section 124-A.
Abhinav Chandrachud practises as an advocate at the Bombay High Court.