CONSTITUTIONALITY OF SECTION 124 A OF INDIAN PENAL CODE 1860

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Section 124-A (SEDITION) of IPC was not incorporated in 1860 when IPC was enacted. But it was present in Section 113 of Macaulay’s Draft Code 1837; it was omitted due to some unaccounted reasons from the final IPC.  But again after 10 years of enactment of IPC in 1870 the need for such law was felt so Sir James Stephen (than the law member of Government of India) brought an amending bill to include the present section 124-A not as sedition but as Exciting Disaffection, exclusively to censure dissenting voices from Indian media, intellectuals and freedom fighters. At that time to constitute an offence under this section it was not necessary that one should excite or attempt to excite mutiny or rebellion or any kind of actual disturbance, it would be sufficient that one tries to excite the feeling of hatred or contempt towards the Government.  Again in  1897 by the IPC (Amendment) Act the above provision was replaced by the present section 124-A Sedition as “whoever by words, either spoken or written or by signs, or by visible representation, or otherwise, brings or attempts to bring hatred or contempt, or excites or attempts to excite 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.”

This law was opposed from the very beginning itself as this law demands allegiance to Government and not to the nation. Our freedom fighters Mahatma Gandhi and Bal Gangadhar Tilak were also the victim of this law. Mahatma Gandhi in his sedition trial 1922 stated; ‘Section 124-A under which I am happily charged is perhaps the prince among the political sections of the IPC design to suppress the liberty of the citizen’.

After independence when the Constitution of India came into operation an important question relating to the constitutionality of Section 124-A, IPC vis-à-vis Article 19 was raised in few leading cases. Indian Leaders realized that the sedition law is somehow against the Article 19(1) (a) of Constitution of India which is a fundamental right to speech and expression. Even our first Prime Minister also raised voice against the sedition law.

Some famous sedition trials were; i) Against Jogendra Chandra Bosethe editor of Bangobasi, for voicing against the Age of Consent Bill. ii) Against Bal Gangadhar Tilak in 1897 and 1909 first was for exhorting to act against Rand, the Plague Commission am=nd second for publishing articles in ‘kesari’. iii) Gandhi ji in 1922 for 3 articles in Magazine Young India. iv) against Aseem Trivediin 2011 a cartoonist for putting up banners mocking the Constitution during rally of anti corruption crusader Anna Hazare in Mumbai and posting the same in website. V) Arundhati Roy, Saiyad Ali Shah Geelani (Hurriyat leader) for ‘anti-India’ speech at a seminar 2010 for advocating independence of Kashmir region. vi) latest case against JNUSU President Kanhaiya Kumar.

There are different opinions regarding the constitutionality of this section first it is ultra-vires of the Constitution of India as it punishes merely bad feelings against the Government. It is an unreasonable restriction on freedom to speech and expression and it was not saved under Article 19(2) of COI by the expression “in the interest of public order”. In a landmark case of KEDAR NATH SINGH VS. STATE OF BIHAR  AIR 1962SC955, five Judges of Supreme Court made it clear that allegedly seditious speech and expression may be punished only if the speech is an incitement’ to ‘violence’ or ‘public disorder’. Further in SHREYA SINGHAL VS. UNION OF INDIA the famous case of section 66 (A) of IT Act, Supreme Court drew a clear distinction between ‘advocacy’ and ‘incitement’ stating that only later could be punished. Line must be drawn between the criticism of Government which is allowed and incitement which would undermine the security or order of civilized life.

 

 

 

 

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