Section 124A of the Indian Penal Code: A Critical Legal Analysis of Sedition in India

Introduction

Section 124A of the Indian Penal Code, 1860 (IPC), which criminalizes sedition, has been a subject of intense debate and judicial scrutiny in India. Originating in the colonial era, its continued presence in the statute books of a democratic republic has raised profound questions concerning the balance between state security, public order, and the fundamental right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution of India. This article undertakes a comprehensive analysis of Section 124A, tracing its historical evolution, examining landmark judicial interpretations, discussing its application, and evaluating its contemporary relevance, particularly in light of recent Supreme Court directives.

Section 124A IPC reads:

“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.” (Balwant Singh And Another v. State Of Punjab, 1995 SCC CRI 432).

Historical Context and Evolution of Section 124A IPC

Section 124A was not part of the original Indian Penal Code of 1860. It was introduced in 1870 by an amendment, largely to counter the rising nationalist sentiments and activities against British colonial rule. Early judicial interpretations, such as in Bal Gangadhar Tilak v. Emperor (1916 SCC ONLINE BOM 96), reflected the colonial administration's intent to suppress dissent. In this case, the Bombay High Court dealt with the meaning of "disaffection," with Strachey J.'s earlier pronouncement (in a previous Tilak case) that "disaffection" meant "absence of affection" being noted and later clarified. The Court in the 1916 Tilak case observed that while loyalty to His Majesty was expressed, criticism of the "Civil Service" or "bureaucracy" could still fall foul of the law if it excited prohibited feelings towards "the Government established by law in British India." However, the Court also noted Tilak's formal repudiation of seditious intent and his advocacy for political changes through lawful means, ultimately setting aside the order against him.

Post-independence, the Allahabad High Court in Ram Nandan -In-Jail v. State (1958 AIR All 429) declared Section 124A IPC unconstitutional, finding it violative of Article 19(1)(a) of the Constitution. The Court reasoned that the section imposed unreasonable restrictions on the freedom of speech and expression. This view, however, was later overturned by the Supreme Court.

The Constitutional Scrutiny: Kedar Nath Singh v. State of Bihar

The constitutionality of Section 124A IPC was definitively addressed by the Supreme Court in the landmark case of Kedar Nath Singh v. State of Bihar (1962 INSC 17; AIR 1962 SC 955). The Court upheld the validity of Section 124A but significantly narrowed its scope to save it from unconstitutionality. It held that the provision would only be attracted if the words, deeds, or writings had the "intention or tendency to create disorder, or disturbance of law and order, or incitement to violence."

The Court in Kedar Nath Singh emphasized:

“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.” (KEDAR NATH SINGH v. STATE OF BIHAR, 1962).

Furthermore, the Court distinguished between "the persons for the time being engaged in carrying on the administration" and "the Government established by law," stating that the latter is the "visible symbol of the State" (Kedar Nath Singh v. State Of Bihar, 1962). The Explanations to Section 124A were highlighted to show that strong criticism of government measures or actions, aimed at their alteration by lawful means, without exciting hatred, contempt, or disaffection leading to public disorder, would not constitute sedition. The Court explicitly adopted the Federal Court's view in Niharendu Dutt Majumdar v. King Emperor (1942 FCR 38) over the Privy Council's broader interpretation in King Emperor v. Sadashiv Narayan Bhalerao (1947 LR 74 IA 89). This "reading down" of the section was crucial for its constitutional sustenance, aligning it with the permissible restrictions under Article 19(2) of the Constitution in the interests of "public order" and "security of the State."

Judicial Application and Interpretation Post-Kedar Nath

Subsequent judicial pronouncements have largely followed the restrictive interpretation laid down in Kedar Nath Singh, though concerns about its inconsistent application and misuse have persisted.

Reinforcing the Kedar Nath Test

The Supreme Court in Balwant Singh And Another v. State Of Punjab (1995 SCC CRI 432) quashed sedition charges against individuals who had raised slogans like "Khalistan Zindabad" on the day of Prime Minister Indira Gandhi's assassination. The Court held that "the casual raising of the slogans, once or twice by two individuals alone cannot be said to be aimed at exciting or attempting to excite hatred or disaffection towards the Government as established by law in India." Crucially, no evidence of public disorder or incitement to violence was found. This case underscored that mere sloganeering, without the tendency to incite violence or public disorder, does not amount to sedition.

More recently, in Vinod Dua v. Union Of India And Others (2021 SCC ONLINE SC 414), the Supreme Court quashed an FIR for sedition against a journalist, reiterating the principles of Kedar Nath Singh. The Court emphasized that "only those acts intended to incite violence or create public disorder qualify as sedition under IPC Sections 124-A and 505." It held that expressions of disapproval or criticism of government actions are protected under Article 19(1)(a), provided they do not incite public disorder or violence.

Various High Courts have also applied this test. For instance, the Jammu and Kashmir High Court in Zakir Hussain Petitioner(S) v. U.T. Of Ladakh And Others (S) (2021) and Zakir Hussain Petitioner(S) v. Ut Of Ladakh (2020), citing Balwant Singh and Kedar Nath, stressed the necessity of violence or agitation for an offense under Section 124A. Similarly, the Madras High Court in S.RAJU v. STATE REP BY (2022) and G.THIRUMUGAN, M/A 41 YEARS, v. THE STATE REP BY ITS (2022) quashed FIRs under Section 124A where the alleged statements, even if critical of government officials or policies, did not meet the threshold of inciting violence or public disorder, also noting the Supreme Court's then-recent observations in the Vombatkere matter.

Criticism of Government v. Sedition

The Explanations to Section 124A, as affirmed in Kedar Nath Singh, are vital in distinguishing legitimate criticism from sedition. The Supreme Court in S.G. VOMBATKERE v. UNION OF INDIA (2023), quoting Kedar Nath Singh, reiterated:

“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. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in...”

This principle is crucial for protecting democratic dissent.

Procedural Safeguards: Sanction under Section 196 CrPC

A significant procedural safeguard against the misuse of Section 124A is enshrined in Section 196 of the Code of Criminal Procedure, 1973 (CrPC). This section mandates prior sanction from the Central Government or the State Government before a court can take cognizance of an offense under Chapter VI of the IPC (which includes Section 124A). The Allahabad High Court in Arun Jaitley v. State Of U.P. (2015 SCC ONLINE ALL 6013) emphasized that the bar under Section 196 CrPC is absolute, and cognizance taken without such sanction is invalid. This requirement acts as a filter against frivolous or politically motivated prosecutions.

Contemporary Challenges and the Abeyance of Section 124A

Despite the safeguards and the narrow interpretation by the Supreme Court, concerns regarding the misuse of Section 124A have grown. Critics argue that the provision has a chilling effect on free speech and is often invoked to suppress dissent and target activists, journalists, and critics of the government. The Bombay High Court in Sanskar Marathe Petitioner v. The State Of Maharashtra (2015 SCC ONLINE BOM 587) dealt with a case where Section 124A was invoked against a cartoonist, and the charge was later decided to be dropped by the State, highlighting instances of arbitrary invocation.

Recognizing these concerns, the Supreme Court in S.G. Vombatkere v. Union Of India (2022 SCC 7 433) passed a significant interim order on May 11, 2022. The Court, noting the Union of India's submission that it was reconsidering the provision, directed that all pending trials, appeals, and proceedings with respect to the charge framed under Section 124A IPC be kept in abeyance. It further urged that governments refrain from registering any new FIRs, continuing investigations, or taking coercive measures under Section 124A while the provision is under reconsideration. The Court observed that Section 124A "may not align with the current socio-political climate" and acknowledged its colonial origins and potential for misuse. This directive effectively put the operation of the sedition law on hold, pending a final decision on its constitutional validity or legislative amendment/repeal.

The principle that mere membership in a banned organization, without active participation in violence or incitement, is insufficient for conviction under anti-terror laws like TADA, as held in Indra Das v. State Of Assam (2011 SCC 3 380) (citing Kedar Nath Singh by analogy), also resonates with the spirit of requiring a higher threshold for speech-related offenses like sedition. The courts in Pugazendhi Thangaraj v. The Commissioner of Police, Chennai (Madras High Court, 2011), Sou.Sundaramoorthi v. The Commissioner Of Police (Madras High Court, 2011), and Abdul Baki Mandal v. State (Delhi High Court, 2012) have similarly emphasized reading down penal provisions to align them with fundamental rights, drawing parallels with the approach in Kedar Nath Singh.

Conclusion

Section 124A IPC, the law of sedition in India, has traversed a complex legal journey. While its colonial objective was to suppress dissent against foreign rule, its retention in independent India has been justified on grounds of state security and public order. The Supreme Court in Kedar Nath Singh v. State of Bihar salvaged its constitutionality by narrowly interpreting its scope, limiting its application to acts involving incitement to violence or a tendency to create public disorder. Subsequent judgments have largely adhered to this high threshold.

However, persistent allegations of misuse and the chilling effect on freedom of speech have led to a critical juncture. The Supreme Court's interim order in S.G. Vombatkere v. Union Of India, keeping Section 124A in abeyance pending governmental review, reflects a profound acknowledgment of these concerns. The future of sedition law in India hangs in the balance, with ongoing debates about whether it should be repealed, amended, or retained with even stricter safeguards to ensure it aligns with the democratic ethos and the cherished right to freedom of expression. The resolution of this issue will be a significant marker in India's constitutional and democratic evolution.