What is Sedition? – I: The Kedar Nath Singh Case

The notorious Aseem Trivedi arrest, and the media furore that followed, is evidence that sedition is amongst the most politically fraught issues in India today. Aseem Trivedi’s arrest itself merits no legal discussion – it is a blatant misuse of law. Yet considering that in the immediate aftermath, there were widespread calls for striking S. 124A off the statute books, and reports that the government was considering amending the law, it is important to achieve clarity on three important issues: what, precisely, does the law of sedition criminalise? Is it constitutional? And if so, what justifies it?

S. 124A of the IPC is aimed at anyone who “brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India.” The Explanation provides, in three parts, definitions of what does and does not constitute the word “disaffection”, and this shall be the focus of this post.

In the 1950s and early 1960s, the Court addressed the law of sedition – albeit incidentally – in Brij BhushanRomesh Thappar and Kameshwar Prasad (all discussed previously). Yet the locus classicus on the point is Kedar Nath Singh v. State of Bihar (1962); in this case, the constitutionality of S. 124A was impugned. Thus, the Court was required to squarely deal with the relationship between sedition and the freedom of speech and expression. The constitutional challenge arose out of a number of cases that were being heard together; all cases involved speeches that – in specific terms – called for an armed revolution to overthrow the government.

In order to understand and evaluate the decision of the Court, a brief foray into judicial history would be apposite. The prohibition of sedition was first enacted into law in 1870, and the issue was first tried in 1892, in Queen-Empress v. Jogendra Chunder Bose. Sir Petheram C.J. at the Calcutta High Court distinguished between “disaffection” (dislike or hatred) and “disapprobation” (disapproval), and expressly linked “disaffection” to “a disposition not to obey the lawful authority of the government” (the phrasing used in the Explanation to the law at the time) (paragraph 13). It did not matter, for the Chief Justice, whether any disturbance was, in fact brought about by the words in question; in fact, it didn’t matter even if no actual disaffection was created; all that mattered was that the words were calculated to, and used with the intent of, creating disaffection.

The meaning of “disaffection” was then clarified in the Tilak case (1898) by Strachey J. at the Bombay High Court who equated it to “disloyalty“, “ill-will” and “enmity“. He held that the strength of the feeling was immaterial; in particular, he held that one did not need to advocate mutiny, rebellion or disturbance in order to be hit by the Section; all that was needed was the advocacy of “feelings of enmity“. A number of appeals against the decision failed.

In particular, what was controversial was whether – as per the Calcutta High Court, disaffection meant a feeling contrary to affection, or whether, according to the Bombay High Court, it meant the mere absence of affection. In that same year (1898), the Allahabad High Court in Queen-Empress v. Amba Prasad accepted the  Strachey J”s interpretation; it rejected the judgment of the Bombay High Court in Satara, which had rejected both the above meanings, holding that it was neither “absence“, nor “negation“, but “a positive feeling of aversion, which is akin to ill will, a definite insubordination of authority or seeking to alienate the people and weaken the bond of allegiance” – insofar as these observations were inconsistent with Tilak. (Paragraph 11) The Court also made the important observation that a man could be guilty of sedition despite advocating – as a matter of expediency – obedience or support to the government (paragraph 11).

The Explanation then passed through a series of amendments over the next fifty years. What is of critical importance is that the terms “disposition to render obedience to the lawful authority”  and “unlawful attempts to resist or subvert that authority” were deleted, and replaced with a definition of disaffection: “disloyalty and all feelings of enmity“. This, when read in light of the Allahabad High Court’s comments in Queen Empress v. Amba Prasad (see above), leads us to our first important legal proposition:

Proposition One: Advocating, inciting, persuading or otherwise encouraging people to disobey the law (or laws) does not, in itself, fall within the legal definition of sedition. 

Readers will notice that this is consistent with the judgment in the Ram Manohar Lohia case (discussed previously). It is also important because it ensures that political movements centred upon principled civil disobedience are not hit by sedition charges.

After stating the extant provision in full, the Court in Kedar Nath Singh had its first stab at a philosophical justification of sedition laws:

“Every State, whatever its form of Government, has to be armed with the power to punish those who, by their conduct, jeopardise the safety and stability of the State, or disseminate such feelings of disloyalty as have the tendency to lead to the disruption of the State or to public disorder.” (paragraph 18)

We mark here two important departures from the colonial-era decisions: first – no longer is the test for seditious speech subjective, depending upon my “intent” or my “calculation”; it is now an objective test: I must either jeopardise the safety of the State, or create such feelings, or the feelings that I “disseminate” must have that “tendency“. Secondly, no longer is it merely enough to create feelings of disloyalty; only those feelings of disloyalty that lead to the disruption of the State are proscribed. The Court has therefore attached a test of tangible evidence of actual harm to the definition of sedition. Readers will note that on a strict construction of the language of the statute and the explanation, this is a strained conclusion.

The Court was then required to address a controversy that had divided the bench in Brij Bhushan and Romesh Thappar. In Niharendru Datt Majumdar v. The King-Emperor (1942), Maurice Gwyer C.J. had expressly linked sedition and public order, by holding that “public disorder, or the reasonable anticipation or likelihood of public disorder, is thus the gist of the offence.” (note, again, the use of the objective test). But in King-Emperor v. Sadashiv Narayan Bhalerao (1947), this viewpoint was rejected by the Privy Council, that relied upon Tilak to hold that incitement to violence was not a necessary precondition towards constituting the crime of sedition. (paragraphs 9 – 12)

Now, in this context, we may note that in the draft Constitution, Article 13(2) [that is, what later became Article 19(2)], originally included the word “sedition”, which was subsequently deleted and replaced by “undermining the security of the State” (see previous posts on public order). What are we to make of this? Romesh Thappar held that this showed that the framers did not accept the broad definition of sedition enunciated by the Privy Council in Sadashiv Narain Bhalerao, but instead, limited it to speech undermining the security of the State. What is crucial is that Fazl Ali J.’s dissents in Brij Bhushan and Romesh Thappar disagreed with the majority opinion on the ground that offences against public safety and public tranquility need not amount to undermining the security of the State; nonetheless, Fazl Ali J. also held that “sedition” “owes its gravity to its tendency to create disorders.” (see paragraph 14 in Brij Bhushan and p. 604 in Romesh Thappar Thus, both the majority and the dissent in Brij Bhushan and Romesh Thappar agreed with Maurice Gwyer’s test of public disorder, and rejected the Privy Council’s broader test of mere feeling of enmity or ill-will.

As we have discussed in previous posts, the First Amendment accepted Fazl Ali J.’s dissents, and replaced “undermining the security of the State” with “in the interests of public order“. With respect to sedition, however, the constitutional change makes no difference to the Gwyer-Privy Council dispute, remaining upon the side of Sir Maurice Gwyer.

Let us now come to the operative part of the Court’s judgment. In paragraphs 36 to 39, the Court embarked upon an exposition of the law, and we can isolate four statements of particular importance:

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.” (paragraph 36)

“...those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence [are punishable].” (paragraph 36)

“…the freedom [of speech and expression] has to be guarded against becoming a licence for vilification and condemnation of the Government established by law, in words, which incite violence or have the tendency to create public disorder. 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.” (paragraph 38)

“If, on the other hand, we were to hold that even without any tendency to disorder or intention to create disturbance of law and order, by the use of words written or spoke which merely create disaffection or feelings of enmity against the Government, the offence of sedition is complete, then such an interpretation of the sections would make then unconstitutional in view of Art. 19(1)(a) read with clause (2).” (paragraph 38)

In the first statement, the Court holds that feelings of enmity or disloyalty definitionally imply an incitement to public disorder – taking us back, therefore, to a more sophisticated version the Privy Council test of mere feeling, by inserting a legal fiction linking it with public disorder. In the second statement, the Court seems to suggest, by the use of the connector “which“, that only some kinds of incitement to feelings of enmity or disloyalty (those that excite to public disorder) are punishable, implying that there is a class of statements that incite enmity or disloyalty, but not public disorder. In the third statement, the Court abandons the ideas of enmity and disloyalty altogether, and focuses – as the ultimate test – upon public disorder. And in the last statement, the Court completes a full U-turn, reversing its position in its first statement, holding specifically that certain words may indeed create disaffection or enmity, but may not incite to disorder, and in that case, it does not amount to sedition.

The Court then went on to expressly affirm Sir Maurice Gwyer’s opinion, reject the Privy Council’s statement of the law, and read S. 124A in light of that. This leads us to our second important legal proposition:

Proposition Two: The test of sedition is identical and equivalent to the test of public order in Article 19(2) of the Constitution, and any law or order that has to do with sedition is not to be judged under some independent test under S. 124A, but in light of the Court’s public order jurisprudence (which is to be determined by referring to the Court’s 19(2) judgments more generally). In other words, the law of sedition does not change or modify or broaden Article 19(2)’s public order test, but is defined and limited by it. In other words, sedition is not constitutional because its elements satisfy 19(2), but insofar as they do so. 

If that is the position of law, then naturally, S. 124A is constitutional. But if that is, indeed the position of law, then S. 124A serves no discernible, separate purpose, and has no reason to exist any longer.

In this post, we have discussed the meaning of “disaffection“. Some important philosophical issues arise, however, when considering what is entailed by the phrase “Government established by law“. In the nest post, we shall consider these. 

 

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8 Comments

Filed under Free Speech, Sedition

8 responses to “What is Sedition? – I: The Kedar Nath Singh Case

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  7. MD

    Do you think it will be possible to suggest that the Kedarnath judgment is per incuriam?
    Post reading your note on the Bafna case and the expansion of the scope of the doctrine of per incuriam, the judgment might be proved so by citing that it has failed to take int consideration the proximity test laid down by Lohia, and has stuck to the more harmful tendency test.
    Granted that lohia was not a 124A case, it does not render the ratio of Lohia regarding 19(2) inapplicable to sedition. The ratios cannot be reconciled here as ‘tendency’ and ‘proximity’ are essentially two different principles.
    also, ignoring the ratio in Lohia and citing Ramjilal Modi makes the decision in Modi which pushed the tendency test. The same test in Lohia was given the touch of proximity through reinterpretation, somethign that was ignored by Kedarnath. Is this a viable argument?

    • Yes – as you point out yourself, per incuriam will be a hard sell, since it wasn’t directly on the same point as Lohia. If you apply the same logic, Lohia would be per incuriam for ignoring Modi. 🙂

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