From my Lecture in AIMC…
Sedition – Definitions
As defined in Ferdico’s Criminal Law and Justice Dictionary
“Advocacy of resistance to, disruption of or otherwise of the Government through speech, publications or other acts, short of overt acts of treason.”
Treason is not defined as a crime in the Indian Penal Code. Art 111 Section 3 of the United States Constitution defines treason as
“Treason against united states shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”
Section 124A of Indian Penal Code, 1860 defines sedition in the following words: –
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.
Sedition in its simplest term is an action calculated to disturb the tranquility of the state and lead ignorant person to endeavor to subvert the Government and laws of the country.
- Induce discontent, dissatisfaction, disloyalty
- Insurrection, rebellion
- Stir up opposition to the government and bring contempt to it
This offence was inserted in the chapter relating to offence against State with a view to fill up an inadvertent omission of a special provision for the punishment of the offence of abetment of rebellion.
It is interesting to note in today’s context, when people are taking on to streets against the Government machinery, Jessica Lal’s case being the latest, that the torch bearer of independence movement like Gandhi and Tilak were tried for sedition and convicted under this section. Gandhi in his trial under this section had pleaded guilty and invited a punishment.
Constitutional Validity of Section 124A – upheld
The constitutional validity of this section has been challenged many times and some of the High Courts have held that it is in violation of fundamental right to freedom of speech and expression and thus constitutionally invalid.
However, the Supreme Court has upheld its validity in number of cases (Kedar Nath Singh AIR 1962 SC 955). It has held that the explanation appended to the main body of the section is clear to manifest that it is not meant to curb freedom of speech and expression. Criticism of public measures or comment on government action however strongly worded would be within reasonable limits and would be consistent with fundamental right. It is only when words used have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activity.
Essential ingredients of the offence
1. Bringing or attempting into hatred or contempt
2. or exiting or attempting to excite disaffection towards government
3. such act may be done by
4. words (either spoken or written) or
5. by signs or
6. by visible representation
The word ‘whoever’ includes not only the writer or creator of the seditious material but also all those responsible for its publication. For everything that appears in his paper the editor and the publisher would be equally responsible along with the author.
Any third person using the seditious material in any way or further publish it would be equally responsible along with the original author.
Principle behind the offence – actual disturbance not mandatory
The offence consists in exiting or attempting to excite in others certain bad feelings towards the Government of India. The section contains everything that amounts to Defamation of the Government with exclusions given only to any criticism in good faith or any particular measures or any acts of administration.
To constitute an offence its not prima facie mandatory to have an intention to cause actual disorder or rebellion. It is sufficient if the accused intended to incite feelings of enmity to the government.
‘Hatred’ and ‘disaffection’ covers all feelings of disloyalty, enmity, dislike, hostility, ill will, political alienation or discontent towards the government.
Presumption of Intention of the accused
The meaning of the words written or spoke should be presumed to be the intention of the accused. This meaning should be that meaning which is to be ordinarily understood by the people to whom the seditious publication is addressed. The burden to deny the ordinary meaning to be his intention lies upon the accused.
Circumstances to be considered – the time when the article is written, the past articles written by same accused etc to be taken into consideration while interpreting the ordinary meaning and intention. In Tilak’s case words of the article in question was interpreted in the light of other articles published at the same time in ‘Kesari’.
The rule followed was, “what would be the natural and probable meaning understood by the readers of kesari at the point of time when the articles was written by Tilak?” Time and context is also to be taken into account. An article, which was seditions at pre independence era, may no longer continue to be seditions as it may have lost its relevance.
General intent of the whole article or publication to be considered and not just isolated lines or words.
“words written or spoken or by visual representation”
- Recitation of seditious poem
- Certain picture, sign, flags, engraving etc.
- Dramatic performance
- Seditious letter
- Seditious extracts from some foreign publication
- Conducting seditious meeting
Publication of some sort is mandatory.
- An anonymous seditious letter written and posted would amount to publication if opened by some one.
- An seditions piece just in the possessions of the author cannot be taken into consideration.
- Government established by law, its rule and representatives.
- The existing political system as distinguished from any particular set of administrators.
- Distinction between govt and individual officers employed under the govt.
- An attempt to remove a minister from power not seditious as it’s an attack against one individual and not the whole of govt
Explanation 2 and 3
- protects the bona fide criticism of public measures and institutions owth a view to their improvement and to the remedying of grievances and abuses.
- Safeguards the freedom of speech and expression to journalists, publicists, orators, public speaker etc.
- The scope of the explanations are very restricted.
- There is no right to attribute the govt with immoral motives while criticizing
- A strong criticism of govt and an attempt to over throw such govt by adhering to constitutional means is not sedition.
- It is sediton only when people are incited to take to unlawful means