PETITIONER:
KEDAR NATH SINGH
Vs.
RESPONDENT:
STATE OF BIHAR
DATE OF JUDGMENT:
20/01/1962
BENCH:
SINHA, BHUVNESHWAR P.(CJ)
BENCH:
SINHA, BHUVNESHWAR P.(CJ)
DAS, S.K.
SARKAR, A.K.
AYYANGAR, N. RAJAGOPALA
MUDHOLKAR, J.R.
CITATION:
1962 AIR 955 1962 SCR Supl. (2) 769
CITATOR INFO :
R 1963 SC 996 (5)
R 1964 SC1230 (9)
RF 1967 SC1877 (22)
D 1970 SC2015 (12)
RF 1973 SC1091 (6)
D 1980 SC 354 (5)
RF 1980 SC1042 (11)
E 1991 SC 101 (28,69,227,278)
ACT:
Sedition-Content of Statute panalising
sedition and statements conducing to public
mischief-Constitutionality of-Whether infringes
freedom of speech-Indian Penal Code, 1860 (Act XLV
of 1860), ss. 124A, 505-Constitution of India,
Arts. (19)(1)(a), 19(2).
HEADNOTE:
Section 124A of the Indian Penal Code which
makes sedition an offence is constitutionally
valid. Though the section imposes restrictions on
the fundamental freedom of
770
speech and expression, the restrictions are in the
interest of public order and are within the ambit
of permissible legislative interference with the
fundamental right. There is a conflict on the
question of the ambit of s. 124A between decision
of the federal Court and of the Privy Council. The
Federal Court has held that words, deeds or
writings constituted an offence under s. 124A only
when they had the intention or tendency to disturb
public tranquility. to create public disturbance
or to promote disorder, whilst the Privy Council
has taken the view that it was not an essential
ingredient of the offence of sedition under s.
124A that the words etc, should be intended to or
be likely to incite public disorder. Either view
can be taken and supported on good reasons. If the
view taken by the Federal Court was accepted s.
124A would be use constitutional but if the view
of the Privy Council was accepted it would be
unconstitutional. It is well settled that if
certain provisions of law construed in one way
would make them consistent with the constitution,
and another interpretation would render them
unconstitutional, the Court would lean in favour
of the former construction. Keeping in mind the
reasons for the introduction of s. 124A and the
history of sedition the section must be so
construed as to limit its application to acts
involving intention or tendency to create
disorder, or disturbance of law and order; or
incitement to violence.
Niharendu Dutt Majumdar v. King Emperor,
(1942) F.C.R. 38, followed.
King Emperor v. Sadashiv Narayan Bhalerao,
(1947) L.R. 74 I.A. 89 and Wallace Johnson v. The
King [1940] A. C. 231 not followed.
Romesh Thapar v. The State of Madras. (1050)
S.C.R. 594. Brij Bhushan v. The State of Delhi.
(1950) S.C. R. 605 and Ramji Lal Modi v. The State
U.P. (1957) S. C. R. 860, referred to.
The Bengal Immunity Company Limited v. The
State of Bihar, (1955) 2 S. C. R. 603 and R. M. D.
Chamarbaugwala v. The Union of India, [1957] S.
C. R. 930 applied.
Each one of the constituent elements of the
offence of making, publishing or circulating
statements conducing to public mischief,
punishable under s. 505 of the Indian Penal Code,
had reference to, and a direct effect on, the
security of the State or public order. Hence the
provisions of s. 505 were clearly saved by Art.
19(2).
^
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION:- Criminal
Appeal No. 169 of 1957.
771
Appeal by special leave from the judgment and
order dated the April 9, 1956, of the Patna High
Court in Cr. A. No. 445 of 1955.
WITH
Criminal Appeals Nos. 124 to 126 of 1958.
Appeals from the judgment and order dated May
16, 1958, of the Allahabad High Court in Criminal
Appeals Nos. 76 and 108 of 1955 and Cr. M. Writ
No. 2371 of 1955.
Janardan Sharma for appellant in Criminal
Appeal No. 169 of 1957:-The appellant has been
convicted under ss. 124A and 505 Indian Penal
Code. Both these sections are ultra vires as they
contravene the provisions of Art. 19(1)(a) of the
Constitution. A speech may disturb public order or
it may not, but both are made punishable under
Section 124A. The section hits speeches of both
varieties permissible speeches and impermissible
speeches. The explanation to section 124A do not
affect the interpretation of the main section. In
a democratic set up a citizen is entitled to
criticise the Government with a view to change it.
Two questions arises in the cases, namely (i) does
s. 124A enact a law which is in the interest of
public order and (ii) does this section impose
reasonable restrictions in the interest of public
order. The decision in I. L. R. (1958) 2 All. 84
which has declared s.124A to be ultra vires
takes the correct law.
R. C. Prasad, for respondent in Criminal
Appeal No. 169 of 1957:-Referred to the decision
in Ramji Lal Modi v. State of U. P. [1957]
S.C.R.860. Stated that he would adopt the
submissions to be made by Shri C. B. Agarwala.
C. B. Agarwala for the appellant in Criminal
Appeals Nos. 124 to 126 of 1958:-The correct
meaning of the provisions of s. 124A in the
context
772
of the present set up and the Constitution is that
given by the Federal Court in Niharendu Dutt’s
case, 1942 F. C. R. 38 and not the meaning given
to them by the Privy Council in Bhalerao’s case 74
I. A. 89. Intepretation by Courts of words of
statutes to a particular set of facts has been
changing with the change in the social and
political structure of society and the opinion of
its reasonable members. Section 124A is in a
chapter which deals with offencss against the
State. Therefore, it is not a case of libel
against any offioer but of an offence against the
State. Words in the English law relating to
sedition are the same as in s. 124A vide Stephen’s
Commentary on the law of England, Vol. 4, page
141, Halsbury’s Law of England 3rd Edition, Vol.
10, page 169 Jowitt’s Dictionary of English law,
page 1605, Stephen’s History of Criminal Law, Vol.
2, page 298 and 301 Chapter 24. Under English Law
a tendency to create tumult or disorder is an
essential element of sedition. Russel on Crimes,
Vol. 1, p. 229, R. v. Collins, 173 E. R. 910. R.
v. Sullivan, 11 Cox. 44. Section 124A has been
taken from the English Law (see 22 Bom. 152).
Section 124A must, therefore, be interpreted in
the same manner as sedition is interpreted in
England and it must be held that a tendency to
disturb public order is an essential element of
the offence under s. 124A. Articles 133 and 133A
of the Canadian Criminal Code which deal with
sedition have been given the same interpretation,
1951, canadian S. C. R. 265. The view taken in
Tilak’s case 22 Bom. 1112, in Bhalerao’s case 74
I.A. 89 and in Wallice Johnsons case[1940] A. C.
231 that incitement to violence or a tendency to
disturb public order was not a necessary
ingredient of s. 124A, is not the correct view.
1942 F. C. R.38 takes the correct view and lays
down that the tendency to disturb public order is
a necessary ingredient of the offence under s.
124A. Devi Saran’s case 32 Pat. 1124 also takes
the same view.
773
There are two interpretations of s. 124A before
the Court, one taken by the Federal Court and the
other taken by the Privy Council. This Court
should accept the interpretation given by the
section Court, as that interpretation would make
the section Constitutional. Even if the
interpretation put by the Privy Council be
accepted as correct one, section 124A will still
be valid. The section certainly contemplates cases
where the speech is likely to disturb public order
and as such the section in the interest of public
order as contemplated in Art. 19(2) and the mere
fact that some cases in which the public order is
not likely to be disturbed are also included
therein, cannot invalidate the section. This court
took a similar view in Ramjilal Modi’s case [1957]
S. C. R. 860 and in Virendra’s case [1958] S. C.
R. 308, the decision Lohia’s case [1960] 2 S. C.
R. 821 does not affect this case, as in that case
it was found that that provisions curtailing
freedom of speech were not in the interest of
public order as the connection between the
provisions and disturbance of public order as too
remove. Even if the section be held according to
the Privy Council view to include which threaten
public order and those which the section can be
held valid with respect s where public order is
threatened as the two of case are severable.
[1957] S. C. R. 930, [1941] F. C. 72 [1951] S. C.
R. 682, [1953] 1059 and 65 L. Ed, 1139.
P. Verma for the Attorney-General of Article
374(2) of the Constitution perversion of the
Federal Court shall have the rect as the decision
of the Supreme Court. Decision of the Federal
Court in 1942 F.C.R. 38 be deemed to be a
decision of this Court and should be held binding.
A tendency to disturb public order is inherent in
s. 124A itself.
Gopal Behari for respondent in Criminal
Appeal No. 124 of 1958:-The interpretataion of s.
124A by
774
the Privy Council has been accepted by the High
Court. Even in English Law sedition does not
necessarily include an intention to disturb public
order, 79 C. L. R. 101. Explanations (2) and (3)
would be redundant if section 124A is interpreted
to incorporate the English view of sedition. The
Allahabad High Court as well as other High Courts
have given the same interpretation of s. 124A as
the Privy Council has. See 1941 All. 156, 1930
Lah. 309, 56 Cal. 1085 and 10 Luck. 712. The
decision in Lohia’s case also [1960] 2 S.C.R. 821
governs the present case also section 124A
punishes such speeches also as have no tendency to
disturb public order and contravenes Art.
19(1)(a). It is not saved by Art. 19(2) as placing
of restriction on such speeches is not in the
interest of public order. It is not open to the
Court to rewrite the section by removing from its
purview such speeches as have no tendency to
disturb public order and to confine it to such
speeches as have a tendency to disturb public
order. The whole section must fail; it cannot be
dissected.
C. B. Agarwala in reply:-In English law is a
necessary ingredient of seditious intention it
must have a tendency to cause tumult or di R. v.
Alred, 22 Cox. C. C. 1, R. v. Burdott, 101, 803;
R. v. O’Brien, 6 St. Tr. (N. S.) 571. The Council
has only said that actual incite violence was not
a necessary ingredient of It has not gone further
and has not laid tendency to disturb public order
was not a ingredient of s. 124A. Even though
public is not an ingredient of the offeence under
there is a tendency to disturb public speeches or
writings which bring or atte bring into hatered or
contempt or excite or at to excite dissatisfaction
towards the Government established by law.
1962. January 20. The Judgment of the court
was delivered by
775
SINHA, C. J.-In these appeals the main
question in controversy is whether ss. 124A and
505 of the Indian Penal Code have become void in
view of the provisions of Art. 19(1)(a) of the
Constitution. The constitutionality of the
provisions of s. 124A, which was mainly canvassed
before us, is common to all the appeals, the facts
of which may shortly be stated separately.
In Criminal Appeal 169 of 1957, the appellant
is one Kedar nath Singh, who was prosecuted before
a Magistrate, 1st Class, at Begusarai, in the
district of Monghyr, in Bihar. He framed the
following charges against the accused person,
which are set out in extenso in order to bring out
the gravamen of the charge against him.
“First.-That you on 26th day of May,
1953 at village Barauni, P. S. Taghra
(Monghyr) by speaking the words, to wit, (a)
To-day the dogs of the C. I. D are loitering
round Barauni. Many official dogs are sitting
even in this meeting. The people of India
drove out the Britishers from this country
and elected these Congress goondas to the
gaddi and seated them on it. To-day these
Congress goondas are sitting on the gaddi due
to mistake of the people. When we drove out
the Britishers, we shall strike and turn out
these Congress goondas as well. These
official dogs will also be liquidated along
with these Congress goondas. These Congress
goondas are banking upon the American dollars
and imposing various kinds of taxes on the
people to-day. The blood of our brothers-
mazdoors and Kishanas is being sucked. The
capitalists and the zamindars of this country
help these Congress goondas. These zamindars
and capitalists will also have to be brought
before the peoples court along with these
Congress goondas.
776
(b) On the strength of the organisation
and unity of Kisans and mazdoors the Forward
Communists Party will expose the black deeds
of the Congress goondas, who are just like
the Britishers. Only the colour of the body
has changed. They have to-day established a
rule of lathis and bullets in the country.
The Britishers had to go away from this land.
They had aeroplanes, guns, bombs and other
weapons with them.
(c) The Forward Communist Party does not
believe in the doctrine of vote itself. The
party had always been believing in revolution
and does so even at present. We believe in
that revolution, which will come and in the
flames of which the capitalists, zamindars
and the Congress leaders of India, who have
made it their profession to loot the country,
will be reduced to ashes and on their ashes
will be established a Government of the poor
and the downtrodden people of India.
(d) It will be a mistake to expect
anything from the Congress relers. They
(Congress rulers) have set up V. Bhave in the
midst of the people by causing him wear a
langoti in order to divert the people’s
attention from their mistakes. To-day Vinova
is playing a drama on the stage of Indian
politics. Confusion is being created among
the people. I want to tell Vinova and advice
his agents, “you should understand it the
people cannot be deceived by this illusion
and fraud of Vinova”. I shall vinova not to
become a puppet in the of the Congress men.
These persons, understand the Yojna-of
Vinova, realise that Vinova is an agent to
the Congress Government.
(e) I tell you that this Congress
Government will do no good to you.
777
(f) I want to tell the last word even to
the Congress Tyrants, “you play with the
people and ruin them by entangling them in
the mesh of bribery, black-marketing and
corruption. To-day the children of the poor
are hankering for food and you Congress men
are assuming the attitude of Nawabs sitting
on the chairs…”
Brought or attempted to bring into
hatred or contempt or excited or attempted to
excite disaffection towards the Government
established by law in the Indian Union and
thereby committed an offence punishable under
section 124A of the Indian Penal Code and
within my cognizance.
Secondly.-That you on the 26th day of
May, 1953 at village Barauni, P. S. Tegra
(Monghyr) made the statement, to wit, (a) To-
day the dogs of the C. I. D. are loitering
round Barauni. Many official dogs are sitting
even in this meeting. The people of India
drove out the Britishers from this country,
And elected these Congress Goondas to the
gaddi and seated them on it. To-day these
Congress Goondas are sitting on the gaddi due
to the mistake of the people. When we have
driven out the Britishers, we shall strike
and turn out these Congress Goondas. These
Congress Goondas are banking upon the
American dollars and imposing various kinds
of taxes on the people to-day. The blood of
our brothers Mazdoors and Kisans is being
sucked. The capitalists and the zamindars of
this country help these Congress Goondas.
These zamindars and capitalists will also
have to be brought before the people’s Court
along with these Congress Goondas.
778
(b) On the strength of organisation and
unity of kisans and mazdoors the Forward
Communist Party will expose the black-deeds
of the Congress Goondas, who are just like
the Britishers. Only the colour of the body
has changed. They have, to-day, established a
rule of lathis and bullets in the country.
The Britishers had to go away from this land.
They had aeroplanes, guns, bombs, and other
reasons with them.
(c) The Forward Communist party does not
believe in the doctrine of votes itself. The
party had always been believing in revolution
and does so even at present. We believe in
that revolution, which will come and in the
flames of which the capitalists, zamindars
and the Congress leaders of India, who have
made it their profession to loot the country,
will be reduced to ashes, and on their ashes
will be established a Government of the poor
and the downtrodden people of India.
(d) It will be a mistake to expect
anything from the Congress rulers. They
(Congress rulers) have set up V. Bhave in the
midst of the people by causing him wear a
langoti in order to divert the attention of
the people from their mistakes. To-day Vinoba
is playing a drama on the stage of Indian
politics. Confusion is being created among
the people. I want to tell Vinova and advise
his agents, “You should understand it that
the people cannot be deceived by this Yojna,
illusion and fraud of Vinova. I shall advice
Vinova not to become a puppet in the hands of
the Congress men. Those persons who
understand the Yojna of Vinova, realise that
Vinova is an agent of Congress Government.
779
(e) I tell you that no good will be done
to you by this Congress Government.
(f) I want to tell the last word even to
Congress tyrants “you play with the people
and ruin them by entangling them in the mesh
of bribery, black-marketing and corruption.
To-day the children of the poor are hankering
for food and you (Congress men) are assuming
the attitude of Nawabs sitting on the
chairs”…….
With intent to cause or which was likely
to cause fear or alarm to the public whereby
any persons might be induce to commit an
offence against the State of Bihar and
against the public tranquility, and thereby
committed an offence punishable under section
505(b) of the Indian Penal Code and within my
cognizance.
After recording a substantial volume of oral
evidence, the learned Trial Magistrate convicted
the accused person both under ss. 124A and 505(b)
of the Indian Penal Code, and sentenced him to
under go rigorous imprisonment for one year. No
separate sentence was passed in respect of the
conviction under the latter section.
The convicted persons preferred an appeal to
the High Court of Judicature at Patna, which was
heard by the late Mr. Justice Naqui Imam, sitting
singly. By this judgment and order dated April 9,
1956, he upheld the convictions and the sentence
and dismissed the appeal. In the course of his
judgment, the learned Judge observed that the
Judge observed of the charge against the
appellant was nothing but a vilification of the
Government; that it was full of incitements to
revolution and that the speech taken as a whole
was certainly seditionus. It is not a speech
critising any of is measures. He held that the
offences both under ss. 124A 505(b) of the Indian
Penal Code had been made out.
780
The convicted person moved this Court and
obtained special leave to appeal. It will be
noticed that the constitutionality of the
provisions of the sections under which the
appellant was convicted had not been convassed
before the High Court. But in the petition for
special leave, to this Court, the ground was taken
that ss. 124A and 505 of the Indian Penal Code
“are inconsistent with Art. 19(1) (a) of the
Constitution”. The appeal was heard in this Court,
in the first instance, by a Division Bench on May
5, 1959. The Bench, finding that the learned
counsel vco the appellant had raised the
constitutional issue as to the validity of ss.
124A and 505 of the Indian Penal Code, directed
that the appeal be placed for hearing by a
Constitution Bench. The case was then placed
before a Constitution Bench, on November 4, 1960,
when that Bench directed notice to issue to the
Attorney General of India under r. 1, O.41 of the
Supreme Court Rules. The matter was once again
placed before a constitution Bench on February 9,
1961, when it was adjourned for two months in
order to enable the State Governments concerned
with this appeal, as also with the connected
Criminal Appeals Nos. 124-126 of 1958 (in which
the Government of Uttar Pradesh is the appellant)
to make up their minds in respect of the
proseocuions, as also in view of the report that
the Law Commission was considering the question of
amending the law of sedition in view of the new
set-up. As the States concerned have instructed
their counsel to press the appeals, the matter has
finally come before us.
In Criminal Appeals 124-126 of 1958 the State
of Uttar Pradesh is the appellant, though the
respondents are different. In Criminal appeal 124
of 1958, the accused person is one Mohd, Ishaq
Ihahi. He was prosecuted for having delivered a
speech at Aligarh as Chairman of the Reception
Committee of the All India Muslim Convention on
October 30,
781
1953. His speech on that occasion, was thought to
be seditious. After the necessary sanction, the
Magistrate held an enquiry, and finding a prima
facie case made out against the accused, committed
him to the Court of Session. The learned Sessions
Judge, by his Judgment dated January 8, 1955,
acquitted him of the charge under s. 153A, but
convicted him of the other charge under s. 124A,
of the Indian Penal Code, and sentenced him to
rigorous imprisonment for one year. The convicted
person preferred an appeal to the High Court. In
the High Court the constitutionality of s. 124A of
the Indian Penal Code was challenged.
In Criminal Appeal No. 125 of 1958, the facts
are that on May 29, 1954, a meeting of the
Bolshovik Party was organised in village
Hanumanganj, in the District of Basti, in Uttar
Pradesh. On that occasion, the respondent Rama
Nand was found to have delivered an objectionable
speech in so far as he advocated the use of
violence for overthrowing the Government
established by law. After the sanction of the
Government to the prosecution had been obtained,
the learned Magistrate held an enquiry and
ultimately committed him to take his trial before
the Court of Sessions. In due course, the learned
Sessions Judge convicted the accused person under
s. 124A of the Indian Penal Code and sentenced him
to rigorous imprisonment for three years. He held
that the accused person had committed the offence
by inciting the audience to an open violent
rebellion against the Government established by
law, by the use of arms. Against the aforesaid
order of conviction and sentence, the accused
person preferred an appeal to the High Court of
Allahabad.
In Criminal Appeal 126 of 1958, the
respondent is one Parasnath Tripathi. He is
alleged to have delivered a speech in village
Mansapur, P.S. Akbarpur, in the district of
Faizabad, on September 26, 1955, in which he is
said to have
782
exhorted the audience to organise a volunteer army
and resist the Government and its servants by
violent means. He is also said to have excited the
audience with intent to create feelings of hatred
and enmity against the Government. When he was
placed on trial for an offence under s. 124A of
the Indian Penal Code, the accused person applied
for a writ of Habeas Corpus in the High Court of
Judicature at. Allahabad on the ground that his
detention was illegal inasmuch as the provisions
s. 124A of the Indian Penal Code were void as
being in contravention of his fundamental rights
of free speech and expression under Art. 19(1)(a)
of the Constitution. This matter, along with the
appeals which have given rise to appeals Nos. 124
and 125, as aforesaid, were ultimately placed
before a Full Bench, consisting of Desai, Gurtu
and Beg, JJ. The learned judges, in separate but
concurring judgments, took the view that s. 124A
of the Indian Penal Code was ultra vires Art.
19(1)(a) of the Constitution. In that view of the
matter, they acquitted the accussed persons,
convicted at aforesaid in the two appeals Nos. 124
and 125, and granted the writ petition of the
accused in criminal Appeal No. 126. In all these
cases the High Court granted the necessary
certificate that the case involved important
questions of law relating to the interpretation of
the Constitution. That is how these appeals are
before by on a certificate of fitness granted by
the High Court.
Shri C. B. Agarwala, who appeared on behalf
of the State of Uttar Pradesh in support of the
appeals against the orders of acquittal passed by
the High Court, contended that the judgment of the
High Court (bow reported in Ram Nandan v. State
(1) in which it was laid down by the Full Bench
that s. 124A of the Indian Penal Code was ultra
Art. 19(1)(a) of the Constitution and,
783
therefore, void for the reason that it was not in
the interest of public order and that the
restrictions imposed there by were not reasonable
restrictions on the freedom of speech and
expression, was erroneous. He further contended
that the section impugned came within the saving
cl. (2) of Art. 19, and that the reasons given by
the High Court to the contrary were erroneous. He
relied upon the observations of the Federal Court
in Niharendu Dutt Majumdar v. The King Emperor
(1). He also relied on Stephen’s Commentaries on
the Laws of England, Volume IV, 21st Edition, page
141, and the Statement of the Law in Halsbury’s
Laws of England, 3rd Edition, volume 10, page 569,
and the cases referred to in those volumes. Mr.
Gopal Behari, appearing on behalf of the
respondents in the Allahabad cases has entirely
relied upon the full Bench decision of the
Allahabad High Court in his favour. Shri Sharma
appearing on behalf of the appellant in the appeal
from the Patna High Court has similarly relied
upon the decision aforesaid of the Allahabad High
Court.
Before dealing with the contentions raised on
behalf of the parties, it is convenient to set out
the history of the law, the amendments it has
undergone and the interpretations placed upon the
provisions of s. 124A by the Courts in India, and
by their Lordships of the judicial Committee of
the Privy Council. The section corresponding to s.
124A was originally s. 113 of Macaulay’s Draft
Penal Code of 1837-39, but the section was omitted
from the Indian Penal Code as it was enacted in
1860. The reason for the omission from the Code is
enacted is not clear, but perhaps the legislative
body did not feel sure above its authority to
enact such a provision in the Code. Be that as it
may, s. 124A was not placed on the Statute Book
until 1870, by Act XXVII of 1870. There
784
was a considerable amount of discussion at the
time the amendment was introduced by Sir James,
Stephen, but what he said while introducing the
bill in the legislature may not be relevant for
our present purposes. The section as then enacted
ran as follows:
“124A. Exciting Disaffection-
Whoever by words, either spoken or
intended to be read, or by signs, or by
visible representation, or otherwise,
excites, or attempts to excite, feelings of
disaffection to the Government established by
law in British India, shall be punished with
transportation for life or for any term, to
which, fine may be added, or with
imprisonment for a term which may extend to
three years, to which fine may be added, or
with fine.
Explanation-Such a disapprobation of the
measures of the Government as is compatible
with a disposition to render obedience to the
lawful authority of the Government and to
support the lawful authority of the
Government against unlawful attempts to
subvert or resist that authority, is not
disaffection. Therefore, the making of
comments on the measures of the Government,
with the intention of exciting only this
species of disapprobation, is not an offence
within this clause.”
The first case in Indian that arose under the
section is what is known as the Bangobasi case
(Queen-Empress v. Jagendra Chunder Bose (1)) which
was tried by a Jury before Sir Comer Petheram, C
J. while charging the jury, the learned Chief
Justice explained the law to the jury in these
terms:
785
“Disaffection means a feeling contrary
to affection, in other words, dislike or
hatred. Disapprobation means simply
disapproval. It is quite possible to
disapprove of a men’s sentiments or action
and yet to like him. The meaning of the two
words is so distinct that I feel it hardly
necessary to tell you that the contention of
Mr. Jackson cannot be sustained. If a person
uses either spoken or written words
calculated to create in the minds of the
persons to whom they are addressed a
disposition not to obey the lawful authority
of the Government, or to subvert or resist
that authority, if and when occasion should
arise, and if he does so with the intention
of creating such a disposition in his bearers
or readers, he will be guilty of the offence
of attempting to excite disaffection within
the meaning of the section though no
disturbance is brought about by his words or
any feeling of disaffection, in fact,
produced by them. It is sufficient for the
purposes of the section that the words used
are calculated to excite feelings of ill will
against the Government and to hold it up to
the hatred and contempt of the people, and
that they were used with the intention to
create such feeling.”
The next case is the celebrated case of
Queen-Empress v. Balqanqaddhar Tilak (1) which
came before the Bobay High Court. The case was
tried by a jury before Strachey, J. The learned
judge, in the course of his charge to the jury,
explain the law to them in these terms:
“The offence as defined by the first
clause is exciting or attempting to excite
feelings of disaffection to the Government.
What are “feelings of disaffection” ? I agree
with Sir Comer Petheram in the Bangobasi case
that disaffection means simply the
786
absence of affection. It means hatred, enmity
dislike, hostility, contempt and every from
of ill-will to the Government. “Disloyalty”
is perhaps the best general term,
comprehending every possible form of bad
feeling to the Government. That is what the
law means by the disaffection which a man
must not excite or attempt to excite; he must
not make or try to make others feel enmity of
any kind towards the Government. You will
observe that the amount or intensity of the
disaffection is absolutely immaterial except
perhaps in dealing with the question of
punishment: if a man excites or attempts to
excite feelings of disaffection, great or
small, he is guilty under the section. In the
next place, it is absolutely immaterial
whether any feelings of disaffection have
been excited or not by the publication in
question. It is true that there is before you
a charge against each prisoner that he has
actually excited feelings of disaffection to
the Government. If you are satisfied that he
has done so, you will, of course, find him
guilty. But if you should hold that charge is
not made out, and that no one is proved to
have been excited to entertain feelings of
disaffection to the Government by reading
these articles, still that alone would not
justify you in acquitting the prisoners. For
each of them is charged not only with
exciting feelings of disaffection, but also
with attempting to excite such feelings. You
will observe that section places on
absolutely the same footing the successful
exciting of feelings of disaffection and the
unsuccessful attempt to excite them, so that,
if you find that either of the prisoners has
tried to excite such feeling in others, you
must convict him even if there is nothing to
show that he succeeded. Again, it is
787
important that you should fully realise
another point. The offence consists in
exciting or attempting to excite in others
certain bad feeling towards the Government.
It is not the exciting or attempting to
excite mutiny or rebellion, or any sort of
actual disturbance, great or small. Whether
any disturbance or outbreak was caused by
there articles, is absolutely immaterial. If
the accused intended by the articles to
excite rebellion or disturbance, his act
would doubtless fall within section 124A, and
would probably fall within other sections of
the Penal Code. But even if he neither
excited nor intended to excite any rebellion
or outbreak or forcible resistance to the
authority of the Government, still if he
tried to excite feelings of enmity to the
Government, that is sufficient to make him
guilty under the section. I am aware that
some distinguished persons have thought that
there can be no offence against the section
unless the accused either counsels or
suggests rebellion or forcible resistance to
the Government. In my opinion, that view is
absolutely opposed to the express words of
the section itself, which as plainly as
possible makes the exciting or attempting to
excite certain feelings, and not the inducing
or attempting to induce to any course of
action such as rebellion or forcible
resistance, the test of guilt. I can only
account for such a view by attributing it to
a complete misreading of the explanation
attached to the section, and to a
misapplication of the explanation beyond its
true scope.”
The long quotation has become necessary in view of
what followed later, namely, that this statement
of the law by the learned judge came in for a
great deal of comment and judicial notice. We have
omitted the charge to the jury relating
788
to the explanation to s. 124A because that
explanation has now yielded place to three
separate explanations in view of judicial opinions
expressed later. The jury, by a majority of six to
three, found Shri Balgangadhar Tilak guilty.
Subsequently, he, on conviction, applied under cl.
41 of the Letters Patent for leave to appeal to
the Privy Council. The application was heard by a
Full Bench consisting of Farran, C. J., Candy and
Strachey, JJ. It was contended before the High
Court at the leave stage, inter alia, that the
sanction given by the Government was not
sufficient in law in that it had not set out the
particulars of the offending articles, and,
secondly, that the judge misdirected the jury as
to the meaning of the word “disaffection” insofar
as he said that it might be equivalent to “absence
of affection”. With regard to the second point,
which is only relevant point before us; the Full
Bench expressed itself to the following effect:
“The other ground upon which Mr. Russell
has asked as to certify that this is a fit
case to be sent to Her Majesty in Council, is
that there has been a misdirection, and he
based his argument on one major and two minor
grounds. The major ground was that the
section cannot be said to have been
contravened unless there is a direct
incitement to stir up disorder or rebellion.
That appears to us to be going much beyond
the words of the section, and we need not say
more upon that ground. The first of the minor
points is that Mr. Justice Strachey in
summing up the case to the jury stated that
disaffection meant the absence of affection”.
But although if that phrase had stood alone
it might have misled the jury, yet taken in
connection with the context we think it is
impossible that the jury could have been
misled by it. That expression was used in
connection with the
789
law as led down by Sir Comer Petheram, in
Calcutta in the Bangobashi case. There the
Chief Justice instead of using the words
“absence of affection” used the words
“contrary to affection”. If the words
“contrary to affection” had been used instead
of “absence of affection” in this case there
can be no doubt that the summing up would
have been absolutely correct in this
particular. But taken in connection with the
context it is clear that by the words
“absence of affection” the learned Judge did
not mean the negation of affection but some
active sentiment on the other side. Therefore
on that point we consider that we cannot
certify that this is a fit case for appeal.”
In this connection it must be remembered
that it is not alleged that there has been a
miscarriage of Justice.”
After making those observations, the Full Bench
refused the application for leave. the case was
then taken to Her Majesty in council, by way of
application for special leave to appeal to the
Judicial Committee. Before their Lordships of the
Privy Council, Asquith, Q. C., assisted by counsel
of great experience and eminence like Mayne, W. C.
Bonnerjee and others, contended that there was a
misdirection as to the meaning of section 124A of
the Penal Code in that the offence had been
defined in terms to wide to the effect that
“disaffection” meant simply “absence of affection”
and that it comprehended every possible form of
bad feeling to the Government. In this connection
reference was made to the observations of
Petheram, C.J. in Queen-Empress v. Jogender
Bose(1). It was also contended that the
appellant’s comments
790
had not exceeded what in England would be
considered within the functions of a Public
journalist, and that the misdirection complained
of was of the greatest importance not merely to
the affected person but to the whole of the Indian
Press and also to all her Majesty’s subjects; and
that it injuriously affected the liberty of the
press and the right to free speech in public
meetings. But in spite of the strong appeal made
on behalf of the petitioner for special leave, the
Lord Chancellor, delivering the opinion of the
Judicial Committee, while dismissing the
application, observed that taking a view of the
whole of the summing up they did not see any
reason to dissent from it, and that keeping in
view the rules which Their Lordships observed in
the matter of granting leave to appeal in criminal
cases, they did not think that the case raised
questions which deserve further consideration by
the Privy Council. (vide Gangadhar Tilak v. Queen
Empress) (1).
Before noticing the further changes in the
Statute, it is necessary to refer to the Full
Bench decision of the Allahabad High Court in
Queen Empress v. Amba Prasad (2). In that case,
Edge, C.J., who delivered the judgment of the
Court, made copious quotations from the judgments
of the Calcutta and the Bombay High Courts in the
cases above referred to. While generally adopting
the reasons for the decisions in the aforesaid two
cases, the learned Chief Justice observed that a
man may be guilty of the offence defined in s.
124A of attempting to excite feelings of
disaffection against the Government established by
law in British India, although in a particular
article or speech he may insist upon the
desirability or expediency of obeying and
supporting the Government. He also made reference
to the decision of the Bombay High Court in the
Satara (3) case. In that case a Full Bench,
consisting of Farran, C.J., and Parsons and
Ranade, JJ,
791
had laid it down that the word “disaffection” in
the section is used in a special sense as meaning
political alienation or discontent or disloyalty
to the Government or existing authority. They also
held that the meaning of word “disaffection” in
the main portion of the section was not varied by
the explanation. Persons, J., held that the word
“disaffection” could not be construed as meaning
‘absence of or contrary of affection or love’.
Ranade J., interpreted the word “disaffection” not
as meaning mere absence or negation of love or
good will 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, a feeling which tends to bring the
Government into hatred and discontent, by imputing
base and corrupt motives to it. The learned Chief
Justice of the Allahabad High Court observed that
if those remarks were meant to be in any sense
different from the construction placed upon the
section by Strachey, J., which was approved, as
aforesaid, by the Judicial Committee of the Privy
Council, the later observations of the Bombay High
Court could not be treated as authoritative. As
the accused in the Allahabad case had pleaded
guilty and the appeal was more or less on the
question of sentence, it was not necessary for
their Lordships to examine in detail the
implications of the section, though they expressed
their general agreement with the view of the
Calcutta and the Bombay High Courts in the first
two cases, referred to above.
The section was amended by the Indian Penal
Code Amendment Act (IV of 1898). As a result of
the amendment, the single explanation to the
section was replaced by three separate
explanations as they stand now. The section, as it
now stands in its present form, is the result of
the several A.O.S. of 1937, 1948 and 1950, as a
result of the constitutional changes, by the
Government of India Act, 1935, by the Independence
Act of 1947 and by the Indian
792
Constitution of 1950. Section 124A, as it has
emerged after successive amendments by way of
adaptations as aforesaid, reads as follows:
“Whoever by words, either spoken or
written, or by signs or by visible
representation, or otherwise, brings or
attempts to bring into hatred to contempt, or
excites or attempts to excite disaffection
towards the Government established by law in
India shall be punished with transportation
for life or any shorter term 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 exiting
or attempting to excite hatred, contempt or
disaffection do not constitute an offence
under this section.
Explanation 3. Comments expressing
disapprobation of the administrative of other
action of the Government without exciting or
attempting to excite hatred, contempt or
disaffection, do not constitute an offence
under this section.”
This offence, which is generally known as the
offence of Sedition, occurs in chapter IV of the
Indian Penal Code, headed ‘Of offences against the
State’. This species of offence against the State
was not an invention of the British. Government in
India, but has been known in England for
centuries. Every State, whatever its form of
Government, has to be armed with the power to
punish those who, by
793
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. In
England, the crime has thus been described by
Stephen in his Commentaries on the Laws of
England, 21st Edition, volume IV, at pages 141-
142, in these words.
“Section IX. Sedition and Inciting to
Disaffection-We are now concerned with
conduct which, on the one hand, fall short of
treason, and on the other does not involve
the use of force or violence. The law has
here to reconcile the right of private
criticism with the necessity of securing the
safety and stability of the State. Sedition
may be defined as conduct which has, either
as its object or as its natural consequence,
the unlawful display of dissatisfaction with
the Government or with the existing order of
society.
The seditious conduct may be by words,
by deed, or by writing. Five specific heads
of sedition may be enumerated according to
the object of the accused. This may be either
1. to excite disaffection against the
King, Government, or Constitution, or against
Parliament or the administration of justice;
2. to promote, by unlawful means, any
alteration in Church or State;
3. to incite a disturbance of the peace;
4. to raise discontent among the King’s
subjects;
5. to excite class hatred.
It must be observed that criticism on
political matters is not of itself seditious.
The test is the manner in which it is made.
Candid and honest discussion is permitted.
The law
794
only interferes when the discussion passes
the bounds of fair criticism. More especially
will this be the case when the natural
consequence of the prisoner’s conduct is to
promote public disorder.”
This statement of the law is derived mainly
from the address to the Jury by Fitzerald, J., in
the case of Reg v. Alexander Martin Sullivan (1).
In the course of his address to the Jury the
learned Judge observed as follows:
“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.”
That the law has not changed during the
course of the centuries is also apparent from the
following statement of the law by Coleridge, J.,
in the course of his summing up to the Jury in the
case of Rex. v. Aldred (2):
795
“Nothing is clearer than the law on this
head-namely, that whoever by language, either
written or spoken incites or encourages other
to use physical force or violence in some
public matter connected with the State, is
guilty of publishing a seditious libel. The
word “sedition” in its ordinary natural
signification denotes a tumult, an
insurrection, a popular commotion, or an
uproar; it implies violence or lawlessness in
some form….”
In that case, the learned Judge was charging the
Jury in respect of the indictment which contained
the charge of seditious libel by a publication by
the defendant.
While dealing with a case arising under Rule
34(6) (e) of the Defence of India Rules under the
Defence of India Act (XXXV of 1939) Sir Maurice
Gwyer, C.J., speaking for the Federal Court, made
the following observations in the case of
Niharendu Dutt Majumdar v. The King Emperor (1);
and has pointed out that the language of s. 124A
of the Indian Penal Code, which was in pari
materia with that of the Rule in question, had
been adopted from the English Law, and referred
with approval to the observations of Fitzerald,
J., in the case quoted above; and made the
following observations which are quite apposite:
“…generally speaking, we think that
the passage accurately states the law as it
is to be gathered from an examination of a
great number of judicial pronouncements.
The first and most fundamental duty of
every Government is the preservation of
order, since order is the condition precedent
to all civilisation and the advance of human
happiness. This duty has no doubt been
sometimes performed in such
796
a way as to make the remedy worse than the
disease; but it does not cease to be a matter
of obligation because some on whom the duty
rests have performed it ill. It is to this
aspect of the functions of government that in
our opinion the offence of sedition stands
related. It is the answer of the State to
those who, for the purpose of attacking or
subverting it, seek (to borrow from the
passage cited above) to disturb its
tranquillity, to create public disturbance
and to promote disorder, or who incite others
to do so. Words, deeds or writings constitute
sedition, if they have this intention or this
tendency; and it is easy to see why they may
also constitute sedition, if they seek, as
the phrase is, to bring Government into
contempt. This is not made an offence in
order to minister to the wounded vanity of
Government, but because where Government and
the law cease to be obeyed because no respect
is felt any longer for them, only anarchy can
follow. Public disorder, or the reasonable
anticipation or likelihood of public
disorder, is thus the gist of the offence.
The acts or words complained of must either
incite to disorder or must be such as to
satisfy reasonable men that is their
intention or tendency.”
This statement of the law was not approved by
their Lordships of the Judicial Committee of the
Privy Council in the case of King-Emperor v.
Sadashiv Narayan Bhalerao (1). The Privy Council,
after quoting the observations of the learned
chief Justice in Niharendu’s case (2), while
disapproving of the decision of the Federal Court,
observed that there was no statutory definition of
“Sedition” in England, and the meaning and content
of the crime had to be gathered from any
decisions.
797
But those were not relevant considerations when
one had to construe the statutory definition of
‘Sedition’ as in the Code. The Privy Council held
that the language of s. 124A, or of the Rule
aforesaid, under the Government of India Act, did
not justify the statement of the law as made by
the learned Chief Justice in Niharendu’s case(1)
they also held that the expression “excite
disaffection” did not include “excite disorder”,
and that, therefore, the decision of the Federal
Court in Niharendu’s case(1) proceeded on a wrong
construction of s. 124A of the Penal Code, and of
sub-para (e), sub-rule (6) of Rule 34 of the
Defence of India Rules; Their Lordships approved
of the dicta in the case of Bal Gangadhar Tilak
(2), and in the case of Annie Basant v. Advocate
General of Madras (3), which was a case under s. 4
of the Indian Press Act. (I of 1910), which was
closely similar in language to s. 124A of the
Penal Code.
The Privy Council also referred to their
previous decision in Wallace Johnson v. The
Kinq(4) which was a case under sub s. 8 of s. 326
of the Criminal Code of the Gold Coast, which
defined “seditious intention” in terms similar to
the words of s.124A of the Penal Code. In that
case, their Lordships had laid down that
incitement to violence was not necessary
ingredient of the Crime of sedition as defined in
that law.
Thus, there is a direct conflict between the
decision of the Federal Court in Niharendu’s case
(1) and of the Privy Counsil in a number of cases
from Indian and the Gold Coast, referred to above.
It is also clear that either view can be taken and
can be supported on good reasons. The Federal
Court decision takes into consideration, as
indicated above, the pre-exiting Common Law of
England in respect of sedition. It does not appear
from the report of
798
the Federal Court decision that the rulings
aforesaid of the Privy Council had been brought to
the notice of their Lordships of the Federal
Court.
So far as this Court is concerned, the
question directly arising for determination in
this batch of cases has not formed the subject
matter of decision previously. But certain
observations made by this Court in some cases, to
be presently noticed, with reference to the
interrelation between freedom of speech and
seditious writing or speaking have been made in
the very first year of the coming into force of
the Constitution. Two cases involving
consideration of the fundamental right of freedom
of speech and expression and certain laws enacted
by some of the States imposing restrictions on
that right came up for consideration before this
Court. Those cases, reported in Romesh Thappar v.
The State of Madras(1) and Brij Bhushan v. The
State of Delhi(2) were heard by Kania C.J., Pazl
Ali, Patanjali Shastri, Mehr Chand Mahajan,
Mukherjea and Das, JJ, and judgments were
delivered on the same day (May 26, 1950). In
Romesh Thappar’s case (1), the majority of the
Court declared s. 9(1-A) of the Madras Maintenance
of Public Order Act (Mad. XXXIII of 1949), which
had authorised imposition of restrictions on the
fundamental right of freedom of speech, to be in
excess of cl. (2) of Art. 19 of the Constitution
authorising such restrictions, and, therefore,
void and unconstitutional. In Brij Bhushan’s case
(2), the same majority struck down s. 7(1)(c) of
the East Punjab Public Safety Act, 1949, as
extended to the Province of Delhi, authorising the
imposition of restrictions on the freedom of
speech and expression for preventing or combating
any activity prejudicial to the public safety or
799
the maintenance of public order. The Court held
those provisions to be in excess of the powers
conferred on the Legislature by cl. (2) of Art. 19
of the Constitution. Mr. Justice Patanjali Sastri,
speaking for the majority of the Court in Romesh
Thappar’s case (1) made the following observations
with reference to the decisions of the Federal
Court and the Judicial Committee of the Privy
Council as to what the law of Sedition in India
was:
“It is also worthy of note that the word
“sedition” which occurred in article 13(2) of
the Draft Constitution prepared by the
Drafting Committee was deleted before the
article was finally passed as article 19(2).
In this connection it may be recalled that
the Federal Court had, in defining sedition
in Niharendu Dutt Majumdar v. The King
Emperor (2) held that “the acts or words
complained of must either incite to disorder
or must be such as to satisfy reasonable men
that that is their intention or tendency”,
but the Privy Council overruled that decision
and emphatically reaffirmed the view
expressed in Tilak’s case to the effect that
“the offence consisted in exciting or
attempting to excite in others certain bad
feelings towards the Government and not in
exciting or attempting to excite mutiny or
rebellion, or any sort of actual disturbance,
great or small” -King Emperor v. Sadashiv
Narayan Bhalerao. Deletion of the word
“sedition” from the draft article 13(2),
therefore, shows that criticism of Government
exciting disaffection or bad feelings toward
it is not to be regarded as a justifying
ground for restricting the freedom of
expression and of the press, unless it is
such as to undermine the security of or tend
to overthrow the State. It is also
significant that the corresponding
800
Irish formula of “undermining the public
order or the authority of the State” (article
40(6)(i) of the Constitution of Fire, 1937)
did not apparently find favour with the
framers of the Indian Constitution. Thus,
very narrow and stringent limits have been
set to permissible legislative abridgement of
the right of free speech and expression, and
this was doubtless due to the realisation
that freedom of speech and of the press lay
at the foundation of all domocratic
organisations, for without free political
discussion no public education, so essential
for the proper functioning of the processes
of popular government, is possible, freedom
of such amplitude might involve risks of
abuse. But the framers of the Constitution
may well have reflected, with Madison who was
“the leading spirit in the preparation of the
First Amendment of the Federal Constitution”
that “it is better to leave a few of its
naxious branches to their luxuriant growth,
than, by prunning, them away to injure the
vigour of those yielding the proper fruits” :
(quoted in Near v. Minnesotta).
Those observations were made to bring out the
difference between the “security of the State” and
“public order”. As the latter expression did not
find a place in Art. 19(2) of the Constitution, as
it stood originally, the section was struck down
as unconstitutional. Fazl Ali, J., dissented from
the views thus expressed by the majority and
reiterated his observations in Brij Bhushan’s case
(1) In the course of his dissenting judgment, he
observed as follows:
“It appears to me that in the ultimate
analysis the real question to be decided in
this case is whether “disorders involving
menace to the
801
peace and tranquillity of the Province” and
affecting “Public safety” will be a matter
which undermines the security of the State or
not. I have borrowed the words quoted within
inverted commas from the preamble of the Act
which shows its scope and necessity and the
question raised before us attacking the
validity of the Act must be formulated in the
manner I have suggested. If the answer to the
question is in the affirmative, as I think it
must be, then the impugned law which
prohibits entry into the State of Madras of
“any document or class of documents” for
securing public safety and maintenance of
public order should satisfy the requirements
laid down in article 19(2) of the
Constitution. From the trend of the arguments
addressed to us, it would appear that if a
document is seditious, its entry could be
validly prohibited, because sedition is a
matter which undermines the Security of the
State; but if on the other hand, the document
is calculated to disturb public tranquillity
and affect public safety, its entry cannot be
prohibited, because public disorder and
disturbance of public tranquillity are not
matters which undermine the security of the
State. Speaking for myself, I cannot
understand this argument. In Brij Bhushan v.
The State. I have quoted good authority to
show that sedition owes its gravity to its
tendency to create disorders and authority on
Criminal Law like Sir James Stephen has
classed sedition as an offence against public
tranquillity.”
In Brij Bhushan case (1), Fazl Ali, J., who was
again the dissenting judge, gave his reasons to
greater detail. He referred to the judgment of the
Federal Court in Niharendu Dutt Majumdar’s case
(2)
802
and to the judgment of the Privy Council to the
contrary in King Emperor v. Sada Shiv Narayan (1).
After having pointed out the divergency of opinion
between the Federal Court of India and the
Judicial Committee of the Privy Council, the
learned Judge made the following observations in
order to explaim why the term “sedition” was not
specifically mentioned in Art. 19(2) of the
Constitution:
“The framers of the Constitution must
have therefore found themselves face to face
with the dilemma as to whether the word
“sedition” should be used in article 19(2)
and if it was to be used in what sense it was
to be used. On the one hand, they must have
had before their mind the very widely
accepted view supported by numerous
authorities that sedition was essentially an
offence against public tranquillity and was
connected in some way or other with public
disorder; and, on the other hand, there was
the pronouncement of the Judicial Committee
that sedition as defined in the Indian Penal
Code did not necessarily imply any intention
or tendency to incite disorder. In these
circumstances, it is not surprising that they
decided not to use the word “sedition” in
clause (2) but used the more general words
which cover sedition and everything else
which makes sedition such a serious offence.
That sedition does undermine the security of
the State is a matter which cannot admit of
much doubt. That it undermines the security
of the state usually through the medium of
public disorder is also a matter on which
eminent Judges and jurists are agreed.
Therefore, it is difficult to hold that
public disorder or disturbance of public
tranquillity are not matters which undermine
the security of the State.”
803
As a result of their differences in the
interpretation of Art.19(2) of the Constitution,
the Parliament amended cl.(2) of Art. 19, in the
form in which it stands at present, by the
Constitution (First Amendment) Act, 1951, by s. 3
of the Act, which substituted the original cl. (2)
by the new cl. (2). This amendment was made with
retrospective effect, thus indicating that it
accepted the statement of the law as contained in
the dissenting judgment of Fazl Ali, J., in so far
as he had pointed out that the concept of
“security of the state” was very much allied to
the concept of “public order” and that
restrictions on freedom of speech and expression
could validly be imposed in the interest of public
order.
Again the question of the limits of
legislative powers with reference to the
provisions of Arts. 19 (1)(a) and 19(2) of the
Constitution came up for decision by a
Constitution Bench of this Court in Ramji Lal Modi
v. The State of U.P. (1). In that case, the
validity of s. 295A of the Indian Penal Code was
challenged on the ground that it imposed
restrictions on the fundamental right of freedom
of speech and expression beyond the limits
prescribed by cl.(2) of Art. 19 of the
Constitution. In this connection, the Court
observed as follows:
“the question for our consideration is
whether the impugned section can be properly
said to be a law imposing reasonable
restrictions on the exercise of the
fundamental rights to freedom of speech and
expression in the interests of public order.
It will be noticed that language employed in
the amended clause is “in the interests of”
and not “for the maintenance of”. As one of
us pointed out in Debi Saron v. The State of
Bihar, the expression “in the interests of”
makes the ambit of the protection very wide.
A law may not have
804
been designed to directly maintain public
order and yet it may have been enacted in the
interests of public order.”
Though the observations quoted above do not
directly bear upon the present controversy, they
throw a good deal of light upon the ambit of the
power of the legislature to impose reasonable
restrictions on the exercise of the fundamental
right of freedom of speech and expression.
In this case, we are directly concerned with
the question how for the offence, as defined in s.
124A of the Indian Penal Code, is consistent with
the fundamental right guaranteed by Art. 19 (1)
(a) of the Constitution, which is in these terms:
“19. (1) All citizens shall have the right.
(a) to freedom of speech and expression..."
This guaranteed right is subject to the right of
the legislature to impose reasonable restrictions,
the ambit of which is indicated by cl. (2), which,
in its amended form, reads as follows:
“(2) Nothing in sub-clause (a) of clause
(1) shall affect the operation of any
existing law or prevent the State from making
any law, in so far as such law imposes
reasonable restrictions on the exercise of
the right conferred by the said sub-clause in
the interests of the security of the State,
friendly relations with foreign States,
public order, decency or morality, or in
relation to contempt of court, defamation or
incitement to an offence.”
It has not been questioned before us that the
fundamental right guaranteed by Art. 19(1)(a) of
the freedom of speech and expression is not an
absolute right. It is common ground that the right
is subject to such reasonable restrictions as
would come within the purview of cl. (2), which
comprises (a) security of the State, (b) friendly
relations with foreign States, (c) public order,
(d) decency or morality, etc. With reference to
the constitutionality
805
of s. 124A or s. 505 of the Indian Penal Code, as
to how far they are consistent with the
requirements of cl. (2) of Art. 19 with particular
reference to security of the State and public
order, the section, it must be noted, penalises
any spoken or written words or signs or visible
representations, etc., which have the effect of
bringing, or which attempt to bring into hatred or
contempt or excites or attempts to excite
disaffection towards the Government established by
law” has to be distinguished from the person’s for
the time being engaged in carrying on the
administration. “Government established by law” is
the visible symbol of the State. The very
existence of the State will be in jeopardy if the
Government established by law is subverted. Hence
the continued existence of the Government
established by law is an essential condition of
the stability of the State. That is why
‘sedition’, as the offence in s. 124A has been
characterised, comes under Chapter VI relating to
offences against the State. 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. But the section has taken care to
indicate clearly that strong words used to express
disapprobation of the measures of Government with
a view to their improvement or alteration by
lawful means would not come within the section.
Similarly, comments,
806
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, would
not be penal. In other words, disloyalty to
Government established by law is not the same
thing as 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.
It has not been contended before us that if a
speech or a writing excites people to violence or
have the tendency to create public disorder, it
would not come within the definition of
‘sedition’. What has been contended is that a
person who makes a very strong speech or uses very
vigorous words in a writing directed to a very
strong criticism of measures of Government or acts
of public officials, might also come within the
ambit of the penal section. But, in our opinion,
such words written or spoken would be outside the
scope of the section. In this connection, it is
pertinent to observe that the security of the
State, which depends upon the maintenance of law
and order is the very basic consideration upon
which legislation, with a view to punishing
offences against the State, is undertaken. Such a
legislation has, on the one hand, fully to protect
and guarantee the freedom of speech and
expression, which is the sine quo non of a
democratic form of Government that our
Constitution has established. This Court, as the
custodian and guarantor of the fundamental rights
of the citizens, has the duty cast upon it of
striking down any law which unduly restricts the
freedom of speech and expression with which we are
concerned in this case. But the freedom has to be
guarded again
807
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. The Court, has,
therefore, the duty cast upon it of drawing a
clear line of demarcation between the ambit of a
citizen’s fundamental right guaranteed under Art.
19(1)(a) of the Constitution and the power of the
legislature to impose reasonable restrictions on
that guaranteed right in the interest of, inter
alia, security of the State and public order. We
have, therefore, to determine how far the ss. 124A
and 505 of the Indian Penal Code could be said to
be within the justifiable limits of legislation.
If it is held, in consonance with the views
expressed by the Federal Court in the case of
Niharendu Dutt majumdar v. The King Emperor(1)
that the gist of the offence of ‘sedition’ is
incitement to violence or the tendency or the
intention to create public disorder by words
spoken or written, which have the tendency or the
effect of bringing the Government established by
law into hatred or contempt or creating
disaffection in the sense of disloyalty to the
State in other words bringing the law into line
with the law of sedition in England, as was the
intention of the legislators when they introduced
s. 124A into the Indian Penal Code in 1870 as
aforesaid, the law will be within the permissible
limits laid down in cl. (2) of Art. 19 of the
Constitution, if on the other hand we give a
literal meaning to the words of the section,
divorced from all the antecedent background in
which the law of sedition has grown, as laid down
in the several decisions of the Judicial Committee
of the Privy Council, it will be true to
808
say that the section is not only within but also
very much beyond the limits laid down in cl. (2)
aforesaid.
In view of the conflicting decisions of the
Federal Court and of the Privy Council, referred
to above, we have to determine whether and how far
the provisions of ss. 124A and 505 of the Indian
Penal Code have to be struck down as
unconstitutional. If we accept the interpretation
of the Federal Court as to the gist of criminality
in an alleged crime of sedition, namely,
incitement to disorder or tendency or likelihood
of public disorder or reasonable apprehension
thereof, the section may lie within the ambit of
permissible legislative restrictions on the
fundamental right of freedom of speech and
expression. There can be no doubt that apart from
the provisions of (2) of Art. 19, ss. 124A and 505
are clearly violative of Art. 19(1)(a) of the
Constitution. But then we have to see how far the
saving clause, namely, cl.(2) of Art. 19 protects
the sections aforesaid. Now, as already pointed
out, in terms of the amended cl. (2), quoted
above, the expression “in the interest of…public
order” are words of great amplitude and are much
more comprehensive than the expression “for the
maintenance of”, as observed by this Court in the
case of Virendra v. The State of Punjab (1). Any
law which is enacted in the interest of public
order may be saved from the vice of constitutional
invalidity. 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 spoken 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 them unconstitutional in view
of Art. 19(1)(a) read with cl. (2). It is well
settled that if certain provisions of law
construed in one way would make
809
them consistent with the Constitution, and another
interpretation would render them unconstitutional,
the Court would lean in favour of the former
construction. The provisions of the sections read
as a whole, along with the explanations, make it
reasonably clear that the sections aim at
rendering penal only such activities as would be
intended, or have a tendency, to create disorder
or disturbance of public peace by resort to
violence. As already pointed out, the explanations
appended to the main body of the section make it
clear that 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 to prevent such activities
in the interest of public order. So construed, the
section, in our opinion, strikes the correct
balance between individual fundamental rights and
the interest of public order. It is also well
settled that in interpreting an enactment the
Court should have regard not merely to the literal
meaning of the words used, but also take into
consideration the antecedent history of the
legislation, its purpose and the mischief it seeks
to suppress (vide (1)). The Bengal Immunity
Company Limited v. The State of Bihar (1) and (2)
R.M.D. Chamarbaugwalla v. The Union of India (2).
Viewed in that light, we have no hesitation in so
construing the provisions of the sections impugned
in these cases as to limit their application to
acts involving intention or tendency to create
disorder, or disturbance of law and order, or
incitement to violence.
We may also consider the legal position, as
it should emerge, assuming that the main s. 124A
is
810
capable of being construed in the literal sense in
which the Judicial Committee of the Privy Council
has construed it in the cases referred to above.
On that assumption, it is not open to this Court
to construe the section is such a way as to avoid
the alleged unconstitutionality by limiting the
application of the section in the way in which the
Federal Court intended to apply it ? In our
opinion, there are decisions of this Court which
amply justify our taking that view of the legal
position. This Court, in the case of R.M.D.
Chamarbaugwalla v. The Union of India (1) has
examined in detail the several decisions of this
Court, as also of the Courts in America and
Australia. After examining those decisions, this
Court came to the conclusion that if the impugned
provisions of a law come within the constitutional
powers of the legislature by adopting one view of
the words of the impugned section or Act, the
Court will take that view of the matter and limit
its application accordingly, in preference to the
view which would make it unconstitutional on
another view of the interpretation of the words in
question. In that case, the Court had to choose
between a definition of the expression ‘Prize
Competitions” as limited to those competitions
which were of a gambling character and those which
were not. The Court chose the former
interpretation which made the rest of the
provisions of the Act, Prize Competitions Act
(XLII of 1955), with particular reference to ss. 4
and 5 of the Act and Rules 11 and 12 framed
thereunder, valid. The Court held that the penalty
attached only to those competitions which involved
the element of gambling and those competitions in
which success depended to a substantial degree on
skill were held to be out of the purview of the
Act. The ratio decidendi in that case, in our
opinion, applied to the case in hand in so far as
we propose to limit its operation only to such
activities as come within the ambit of
811
the observations of the Federal Court, that is to
say, activities involving incitement to violence
or intention or tendency to create public disorder
or cause disturbance of public peace.
We do not think it necessary to discuss or to
refer in detail to the authorities cited and
discussed in the reported case R.M.D.
Chamarbaugwalla v. The Union of India (1) at pages
940 to 952. We may add that the provisions of the
impugned sections, impose restrictions on the
fundamental freedom of speech and expression, but
those restrictions cannot but be said to be in the
interest of public order and within the ambit of
permissible legislative interference with that
fundamental right.
It is only necessary to add a few
observations with respect to the constitutionality
of s. 505 of the Indian Penal Code. With reference
to each of the three clauses of the section, it
will be found that the gravamen of the offence is
making, publishing or circulating any statement,
rumour or report (a) with intent to cause or which
is likely to cause any member of the Army, Navy or
Air Force to mutiny or otherwise disregard or fail
in his duty as such; or (b) to cause fear or alarm
to the public or a section of the public which may
induce the commission of an offence against the
State or against public tranquillity; or (c) to
incite or which is likely to incite one class or
community of persons to commit an offence against
any other class or community. It is manifest that
each one of the constituent elements of the
offence under s. 505 has reference to, and a
direct effect on, the security of the State or
public order. Hence, these provisions would not
exceed the bounds of reasonable restrictions on
the right of freedom of speech and expression. It
is clear,
812
therefore, that cl. (2) of Art. 19 clearly save
the section from the vice of unconstitutionality.
It has not been contended before us on behalf
of the appellant in C.A. 169 of 1957 or on behalf
of the respondents in the other appeals (No. 124-
126 of 1958) that the words used by them did not
come within the purview of the definition of
sedition as interpreted by us. No arguments were
advanced before us to show that even on the
interpretation given by us their cases did not
come within the mischief of the one or the other
section, as the case may be. It follows,
therefore, that the Criminal Appeal 169 of 1957
has to be dismissed. Criminal Appeals 124-126 of
1958 will be remanded to the High Court to pass
such order as it thinks fit and proper in the
light of the interpretation given by us.
Appeal No. 169 of 1957 dismissed.
Appeals Nos. 124 to 126 of 1958 allowed.