Thursday, April 14, 2016

A closer reading of the Supreme Court of India decision in Kedar Nath Singh vs State of Bihar (1962) on the offence of sedition defined in Section 124A IPC

- Seema Sapra

In light of the apparent misuse of the law of sedition by the Delhi Police in the JNU slogan shouting incidents, a closer look at the essential ingredients of the crime of sedition under Section 124A of the Indian Penal Code as clarified by the Supreme Court of India in Kedar Nath Singh vs State of Bihar (1962) is needed. 

This 1962 case was the first time that the Supreme Court had to consider the legality of the colonial law on sedition (Section 124A IPC which was enacted in 1870) in post independent India and in the context of the newly created fundamental right to free speech under Article 19. Both Section 124A and Section 505 IPC were under challenge as unconstitutional in the light of Article 19. 

Bound to deal with precedent (even if the earlier cases were from the colonial era) the Supreme Court was faced with two directly conflicting interpretations of Section 124A. The Federal Court in Niharendu Dutt's case had interpreted Section 124A in alignment with British law on sedition and held that a tendency to disturb public order was an essential element of the offence under s. 124A. On the other hand, a line of cases including the sedition case of Bal Gangadhar Tilak and culminating in the Privy Council decision in the case of King-Emperor v. Sadashiv Narayan Bhalerao  had held that incitement to violence or a tendency to disturb public order was not a necessary ingredient of the offence under s. 124A. 

The offence of sedition is an offence against the State. As understood in England the crime of sedition fell short of actual treason, and did not involve the actual use of force or violence.The following passage from the address to the Jury by Fitzerald, J., in the case of Reg v. Alexander Martin Sullivan is useful to understand the meaning of the crime of sedition as it was understood under the British Empire.   

"Sedition is a crime against society, nearly allied to that of treason, and it frequently precedes treason by short interval. Sedition in itself is a comprehensive term, and it embraces all those practices, whether by word, deed or writing, which are calculated to disturb the tranquility of the State, and lead ignorant persons to endeavour to subvert the Government and the laws of the empire. The objects of sedition generally are to induce discontent and insurrection and stir up opposition to the Government, and bring the administration of justice into contempt; and the very tendency of sedition is to incite the people to insurrection and rebellion. Sedition has been described, as disloyalty in action and the law considers as sedition all those practices which have for their object to excite discontent or dissatisfaction, to create public disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign or the Government, the laws or constitution of the realm, and generally all endeavours to promote public disorder."

In Kedar Nath Singh, the Supreme Court noted that Article 19(2) of the Constitution which carves out the right of the legislature to impose reasonable restrictions on the fundamental right to free speech guaranteed under Article 19(1) was amended in 1951 to include public order as a result of the 1950 cases of Romesh Thappar v. The State of Madras and Brij Bhushan v. The State of Delhi. 

So in Kedar Nath Singh, the question before the Supreme Court was as to the constitutionality of s. 124A and s. 505 of the Indian Penal Code under Article 19(2) with particular reference to security of the State and public order, both of which find mention in that Article. 

In its analysis of Section 124A, the Supreme Court in Kedar Nath Singh first noted that the words “Government established by law" were not a reference to “the person's for the time being engaged in carrying on the administration" but referred to the Government as the visible symbol of the State. The Supreme Court clarified that the crime of sedition was a crime against the State and was intended to protect the very existence of the State. The purpose of the crime of sedition was to prevent the Government established by law from being subverted because “the continued existence of the Government established by law is an essential condition of the stability of the State”. 

The passage which follows is the most important passage in the Supreme Court decision in Kedar Nath Singh and contains the ratio decidendi of the case. 

“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.” 

As the above passage notes, according to the Supreme Court the essence of the crime of sedition requires acts which are intended to have the “effect of subverting the Government” by violent means. 

In Kedar Nath Singh, the Supreme Court also clarified what is not sedition. Thus it clarified that mere “strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means” is not sedition. 

It clarified that “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” is not sedition. 

It clarified that “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” is not sedition. 

The Supreme Court clarified that 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.” Note the use of the “whatever” here. 

As a result, the Supreme Court expressly sided with the interpretation of sedition by the Federal Court in Niharendu Dutt and stressed that “incitement to violence or the tendency or the intention to create public disorder” was also an essential ingredient of the offence of sedition. The Supreme Court expressly rejected a literal interpretation of Section 124A. It also expressly rejected the Privy Council interpretation which did not require the prosecution to establish “incitement to violence or the tendency or the intention to create public disorder” as an essential ingredient of the offence of sedition. The Supreme Court justified this stand by pointing out that the crime of sedition was a crime against “the security of the State, which depends upon the maintenance of law and order” and that acts (spoken words) which did not have the “tendency to disorder or intention to create disturbance of law and order” would not amount to sedition even if such acts/ words “create disaffection or feelings of enmity against the Government”. In order to leave no doubt as to its ruling, the Supreme Court further stated that section 124A hits only those “activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence”. The Kedar Nath ruling later refers to this as acts “involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.” 

The Supreme Court supported its interpretation of Section 124A by stating that the alternative interpretation would render the provision unconstitutional under Article 19 (1) and (2). 

So to summarize, the Supreme Court has stated that Section 124A cannot be interpreted literally. The two essential ingredients required to establish the crime of sedition under Section 124A are 

(i) the acts complained of must be intended to have the “effect of subverting the Government” by violent means; and 
(ii) the acts complained of must be intended, or have a tendency, to create disorder or disturbance of public peace/ law and order by resort to violence and must incite violence. 

Therefore, mere slogan shouting against the State or the Government established by law which is not intended to have the “effect of subverting the Government” by violent means; and which is not intended to, nor has the tendency, to create disorder or disturbance of public peace/ law and order by resort to violence; and which does not incite violence will not amount to the crime of sedition under section 124A. 

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