{"id":67555,"date":"1962-01-20T00:00:00","date_gmt":"1962-01-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kedar-nath-singh-vs-state-of-bihar-on-20-january-1962"},"modified":"2016-05-07T22:38:06","modified_gmt":"2016-05-07T17:08:06","slug":"kedar-nath-singh-vs-state-of-bihar-on-20-january-1962","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kedar-nath-singh-vs-state-of-bihar-on-20-january-1962","title":{"rendered":"Kedar Nath Singh vs State Of Bihar on 20 January, 1962"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Kedar Nath Singh vs State Of Bihar on 20 January, 1962<\/div>\n
Equivalent citations: 1962 AIR 955, \t\t 1962 SCR Supl. (2) 769<\/div>\n
Author: B P Sinha<\/div>\n
Bench: Sinha, Bhuvneshwar P.(Cj), Das, S.K., Sarkar, A.K., Ayyangar, N. Rajagopala, Mudholkar, J.R.<\/div>\n
           PETITIONER:\nKEDAR NATH SINGH\n\n\tVs.\n\nRESPONDENT:\nSTATE OF BIHAR\n\nDATE OF JUDGMENT:\n20\/01\/1962\n\nBENCH:\nSINHA, BHUVNESHWAR P.(CJ)\nBENCH:\nSINHA, BHUVNESHWAR P.(CJ)\nDAS, S.K.\nSARKAR, A.K.\nAYYANGAR, N. RAJAGOPALA\nMUDHOLKAR, J.R.\n\nCITATION:\n 1962 AIR  955\t\t  1962 SCR  Supl. (2) 769\n CITATOR INFO :\n R\t    1963 SC 996\t (5)\n R\t    1964 SC1230\t (9)\n RF\t    1967 SC1877\t (22)\n D\t    1970 SC2015\t (12)\n RF\t    1973 SC1091\t (6)\n D\t    1980 SC 354\t (5)\n RF\t    1980 SC1042\t (11)\n E\t    1991 SC 101\t (28,69,227,278)\n\n\nACT:\n     Sedition-Content\tof    Statute\tpanalising\nsedition  and\tstatements  conducing\tto  public\nmischief-Constitutionality  of-Whether\t infringes\nfreedom of speech-Indian Penal Code, 1860 (Act XLV\nof 1860),  ss. 124A,  505-Constitution\tof  India,\nArts. (19)(1)(a), 19(2).\n\n\n\nHEADNOTE:\n     Section 124A  of the  Indian Penal Code which\nmakes  sedition\t an  offence  is  constitutionally\nvalid. Though  the section imposes restrictions on\nthe fundamental freedom of\n770\nspeech and expression, the restrictions are in the\ninterest of  public order and are within the ambit\nof permissible\tlegislative interference  with the\nfundamental right.  There is  a\t conflict  on  the\nquestion of  the ambit of s. 124A between decision\nof the federal Court and of the Privy Council. The\nFederal\t Court\thas  held  that\t words,\t deeds\tor\nwritings constituted an offence under s. 124A only\nwhen they had the intention or tendency to disturb\npublic tranquility.  to create\tpublic disturbance\nor to  promote disorder,  whilst the Privy Council\nhas taken  the view  that it  was not an essential\ningredient of  the offence  of sedition\t under\ts.\n124A that  the words etc, should be intended to or\nbe likely  to incite  public disorder. Either view\ncan be taken and supported on good reasons. If the\nview taken  by the  Federal Court  was accepted s.\n124A would  be use  constitutional but if the view\nof the\tPrivy Council  was accepted  it\t would\tbe\nunconstitutional.  It  is  well\t settled  that\tif\ncertain provisions  of law  construed in  one  way\nwould make  them consistent with the constitution,\nand  another   interpretation  would  render  them\nunconstitutional, the  Court would  lean in favour\nof the\tformer construction.  Keeping in  mind the\nreasons for  the introduction  of s.  124A and the\nhistory\t of   sedition\tthe  section  must  be\tso\nconstrued as  to limit\tits  application  to  acts\ninvolving  intention   or   tendency   to   create\ndisorder, or  disturbance of  law  and\torder;\tor\nincitement to violence.\n     Niharendu\tDutt  Majumdar\tv.  King  Emperor,\n(1942) F.C.R. 38, followed.\n     King Emperor  v. Sadashiv\tNarayan\t Bhalerao,\n(1947) L.R.  74 I.A. 89 and Wallace Johnson v. The\nKing [1940] A. C. 231 not followed.\n     Romesh Thapar  v. The State of Madras.<\/a> (1050)\nS.C.R. 594.  Brij Bhushan  v. The  State of Delhi.<\/a>\n(1950) S.C. R. 605 and Ramji Lal Modi v. The State\nU.P.<\/a> (1957) S. C. R. 860, referred to.\n     The Bengal\t Immunity Company  Limited v.  The\nState of Bihar,<\/a> (1955) 2 S. C. R. 603 and R. M. D.\nChamarbaugwala v.  The Union   of India, [1957] S.\nC. R. 930 applied.\n     Each one  of the  constituent elements of the\noffence\t of   making,  publishing  or  circulating\nstatements   conducing\t  to   public\t mischief,\npunishable under  s. 505 of the Indian Penal Code,\nhad reference  to, and\ta direct  effect  on,  the\nsecurity of  the State\tor public order. Hence the\nprovisions of  s. 505  were clearly  saved by Art.\n19(2).\n^\n\n\n\nJUDGMENT:\n<\/pre>\n
     CRIMINAL  APPELLATE  JURISDICTION:-  Criminal
\nAppeal No. 169 of 1957.\n<\/p>\n
771<\/span><\/p>\n
     Appeal by special leave from the judgment and
\norder dated  the April\t9, 1956, of the Patna High
\nCourt in Cr. A. No. 445 of 1955.\n<\/p>\n
\t\t\t\t\t      WITH
\n     Criminal Appeals Nos. 124 to 126 of 1958.
\n     Appeals from the judgment and order dated May
\n16, 1958,  of the Allahabad High Court in Criminal
\nAppeals Nos.  76 and  108 of  1955 and Cr. M. Writ
\nNo. 2371 of 1955.\n<\/p>\n
     Janardan Sharma  for  appellant  in  Criminal
\nAppeal No.  169 of  1957:-The appellant\t has  been
\nconvicted under\t ss. 124A  and\t505  Indian  Penal
\nCode. Both  these sections are ultra vires as they
\ncontravene the\tprovisions of Art. 19(1)(a) of the
\nConstitution. A speech may disturb public order or
\nit may\tnot, but  both are  made punishable  under
\nSection 124A.  The section  hits speeches  of both
\nvarieties permissible  speeches and  impermissible
\nspeeches. The  explanation to  section 124A do not
\naffect the  interpretation of the main section. In
\na democratic  set up  a\t citizen  is  entitled\tto
\ncriticise the Government with a view to change it.
\nTwo questions arises in the cases, namely (i) does
\ns. 124A\t enact a  law which  is in the interest of
\npublic order  and (ii)\tdoes this  section  impose
\nreasonable restrictions\t in the interest of public
\norder. The  decision in\t I. L. R. (1958) 2 All. 84
\nwhich has  declared    s.124A  to be  ultra  vires
\ntakes the correct law.\n<\/p>\n
     R. C.  Prasad,  for  respondent  in  Criminal
\nAppeal No.  169 of  1957:-Referred to the decision
\nin Ramji  Lal  Modi  v.\t State\tof  U.\tP.<\/a>  [1957]
\nS.C.R.860.  Stated   that  he\twould  adopt   the
\nsubmissions to be made by Shri C. B. Agarwala.\n<\/p>\n
     C. B.  Agarwala for the appellant in Criminal
\nAppeals Nos.  124  to  126  of\t1958:-The  correct
\nmeaning of  the\t provisions  of\t s.  124A  in  the
\ncontext
\n772<\/span>
\nof the present set up and the Constitution is that
\ngiven by  the Federal  Court in\t Niharendu  Dutt’s
\ncase, 1942  F. C.  R. 38 and not the meaning given
\nto them by the Privy Council in Bhalerao’s case 74
\nI. A.  89. Intepretation  by Courts  of\t words\tof
\nstatutes to  a particular  set of  facts has  been
\nchanging  with\t the  change  in  the  social  and
\npolitical structure  of society and the opinion of
\nits reasonable\tmembers.  Section  124A\t is  in\t a
\nchapter which  deals  with  offencss  against  the
\nState. Therefore,  it  is  not\ta  case\t of  libel
\nagainst any  offioer but of an offence against the
\nState.\tWords  in  the\tEnglish\t law  relating\tto
\nsedition are the same as in s. 124A vide Stephen’s
\nCommentary on  the law\tof England,  Vol. 4,  page
\n141, Halsbury’s\t Law of\t England 3rd Edition, Vol.
\n10, page  169 Jowitt’s\tDictionary of English law,
\npage 1605, Stephen’s History of Criminal Law, Vol.
\n2, page\t 298 and 301 Chapter 24. Under English Law
\na tendency  to create  tumult or  disorder  is\tan
\nessential element  of sedition.\t Russel on Crimes,
\nVol. 1,\t p. 229,  R. v. Collins, 173 E. R. 910. R.
\nv. Sullivan,  11 Cox.  44. Section  124A has  been
\ntaken from  the English\t Law (see  22  Bom.  152).
\nSection 124A  must, therefore,\tbe interpreted\tin
\nthe same  manner as  sedition  is  interpreted\tin
\nEngland and  it must  be held  that a  tendency to
\ndisturb public\torder is  an essential\telement of
\nthe offence  under s.  124A. Articles 133 and 133A
\nof the\tCanadian Criminal  Code\t which\tdeal  with
\nsedition have  been given the same interpretation,
\n1951, canadian\tS. C.  R. 265.\tThe view  taken in
\nTilak’s case  22 Bom.  1112, in Bhalerao’s case 74
\nI.A. 89\t and in\t Wallice Johnsons case[1940] A. C.
\n231 that  incitement to\t violence or a tendency to
\ndisturb\t public\t  order\t was   not   a\t necessary
\ningredient of  s. 124A,\t is not\t the correct view.
\n1942 F.\t C. R.38  takes the  correct view and lays
\ndown that  the tendency to disturb public order is
\na necessary  ingredient of  the offence\t under\ts.
\n124A. Devi  Saran’s case  32 Pat.  1124 also takes
\nthe same view.\n<\/p>\n
773<\/span><\/p>\n
There are  two interpretations\tof s.  124A before
\nthe Court,  one taken by the Federal Court and the
\nother taken  by\t the  Privy  Council.  This  Court
\nshould accept  the   interpretation given  by  the
\nsection Court,\tas that\t interpretation would make
\nthe   section\t Constitutional.   Even\t  if   the
\ninterpretation\tput   by  the\tPrivy  Council\tbe
\naccepted as  correct one,  section 124A will still
\nbe valid. The section certainly contemplates cases
\nwhere the speech is likely to disturb public order
\nand as\tsuch the section in the interest of public
\norder as  contemplated in  Art. 19(2) and the mere
\nfact that  some cases in which the public order is
\nnot likely  to\tbe  disturbed  are  also  included
\ntherein, cannot invalidate the section. This court
\ntook a similar view in Ramjilal Modi’s case [1957]
\nS. C.  R. 860  and in Virendra’s case [1958] S. C.
\nR. 308,\t the decision  Lohia’s case [1960] 2 S. C.
\nR. 821\tdoes not affect this case, as in that case
\nit  was\t found\tthat  that  provisions\tcurtailing
\nfreedom of  speech were\t not in\t the  interest\tof
\npublic\torder\tas  the\t  connection  between  the
\nprovisions and\tdisturbance of public order as too
\nremove. Even  if the  section be held according to
\nthe Privy  Council view\t to include which threaten
\npublic order  and those\t which the  section can be
\nheld valid  with respect  s where  public order is
\nthreatened as  the  two\t of  case  are\tseverable.
\n[1957] S.  C. R. 930, [1941] F. C. 72 [1951] S. C.
\nR. 682, [1953] 1059 and 65 L. Ed, 1139.\n<\/p>\n
     P. Verma  for the Attorney-General of Article
\n374(2)\tof  the\t Constitution  perversion  of  the
\nFederal Court  shall have the rect as the decision
\nof the\tSupreme Court.\tDecision  of  the  Federal
\nCourt in  1942 F.C.R.  38    be\t deemed\t to  be\t a
\ndecision of this Court and should be held binding.
\nA tendency  to disturb public order is inherent in
\ns. 124A itself.\n<\/p>\n
     Gopal  Behari   for  respondent  in  Criminal
\nAppeal No.  124 of 1958:-The interpretataion of s.
\n124A by
\n774<\/span>
\nthe Privy  Council has\tbeen accepted  by the High
\nCourt. Even  in\t English  Law  sedition\t does  not
\nnecessarily include an intention to disturb public
\norder, 79  C. L.  R. 101. Explanations (2) and (3)
\nwould be  redundant if section 124A is interpreted
\nto incorporate\tthe English  view of sedition. The
\nAllahabad High\tCourt as well as other High Courts
\nhave given  the same  interpretation of s. 124A as
\nthe Privy  Council has.\t See 1941  All. 156,  1930
\nLah. 309,  56 Cal.  1085 and  10  Luck.\t 712.  The
\ndecision in  Lohia’s case also [1960] 2 S.C.R. 821
\ngoverns\t the   present\tcase   also  section  124A
\npunishes such speeches also as have no tendency to
\ndisturb\t public\t  order\t  and\tcontravenes   Art.
\n19(1)(a). It is not saved by Art. 19(2) as placing
\nof restriction\ton such\t speeches is  not  in  the
\ninterest of  public order.  It is  not open to the
\nCourt to  rewrite the section by removing from its
\npurview such  speeches\tas  have  no  tendency\tto
\ndisturb public\torder and  to confine  it to  such
\nspeeches as  have a  tendency  to  disturb  public
\norder. The  whole section  must fail; it cannot be
\ndissected.\n<\/p>\n
     C. B.  Agarwala in reply:-In English law is a
\nnecessary ingredient  of  seditious  intention\tit
\nmust have  a tendency  to cause tumult or di R. v.
\nAlred, 22  Cox. C.  C. 1, R. v. Burdott, 101, 803;
\nR. v.  O’Brien, 6 St. Tr. (N. S.) 571. The Council
\nhas only  said that actual incite violence was not
\na necessary  ingredient of It has not gone further
\nand has not laid  tendency to disturb public order
\nwas not\t a ingredient  of  s.  124A.  Even  though
\npublic is  not an ingredient of the offeence under
\nthere is  a tendency to disturb public speeches or
\nwritings which bring or atte bring into hatered or
\ncontempt or excite or at to excite dissatisfaction
\ntowards the Government established by law.\n<\/p>\n
     1962. January  20. The  Judgment of the court
\nwas delivered by
\n775<\/span>
\n     SINHA,  C.\t  J.-In\t these\tappeals\t the  main
\nquestion in  controversy is  whether ss.  124A and
\n505 of\tthe Indian  Penal Code have become void in
\nview of\t the provisions\t of Art.  19(1)(a) of  the
\nConstitution.\tThe   constitutionality\t  of   the
\nprovisions of  s. 124A, which was mainly canvassed
\nbefore us, is common to all the appeals, the facts
\nof which may shortly be stated separately.\n<\/p>\n
     In Criminal Appeal 169 of 1957, the appellant
\nis one Kedar nath Singh, who was prosecuted before
\na Magistrate,  1st Class,  at  Begusarai,  in  the
\ndistrict of  Monghyr,  in  Bihar.  He  framed  the
\nfollowing  charges  against  the  accused  person,
\nwhich are set out in extenso in order to bring out
\nthe gravamen of the charge against him.\n<\/p>\n
\t  “First.-That you  on 26th  day  of  May,
\n     1953  at\tvillage\t Barauni,   P.\tS.  Taghra
\n     (Monghyr) by  speaking the words, to wit, (a)
\n     To-day the dogs of the C. I. D  are loitering
\n     round Barauni. Many official dogs are sitting
\n     even in  this meeting.  The people\t of  India
\n     drove out\tthe Britishers\tfrom this  country
\n     and elected  these Congress  goondas  to  the
\n     gaddi and\tseated them  on it.  To-day  these
\n     Congress goondas are sitting on the gaddi due
\n     to mistake\t of the\t people. When we drove out
\n     the Britishers,  we shall strike and turn out
\n     these  Congress   goondas\tas   well.   These
\n     official dogs  will also  be liquidated along
\n     with these\t Congress goondas.  These Congress
\n     goondas are banking upon the American dollars
\n     and imposing  various kinds  of taxes  on the
\n     people to-day.  The blood\tof  our\t brothers-
\n     mazdoors and  Kishanas is\tbeing sucked.  The
\n     capitalists and the zamindars of this country
\n     help these\t Congress goondas. These zamindars
\n     and capitalists  will also have to be brought
\n     before the\t peoples court\talong  with  these
\n     Congress goondas.\n<\/p><\/blockquote>\n
776<\/span><\/p>\n
\t  (b) On  the strength of the organisation
\n     and unity\tof Kisans and mazdoors the Forward
\n     Communists Party  will expose the black deeds
\n     of the  Congress goondas,\twho are\t just like
\n     the Britishers.  Only the\tcolour of the body
\n     has changed.  They have  to-day established a
\n     rule of  lathis and  bullets in  the country.
\n     The Britishers had to go away from this land.
\n     They had  aeroplanes, guns,  bombs and  other
\n     weapons with them.\n<\/p><\/blockquote>\n
\t  (c) The Forward Communist Party does not
\n     believe in\t the doctrine  of vote itself. The
\n     party had always been believing in revolution
\n     and does  so even\tat present.  We believe in
\n     that revolution,  which will  come and in the
\n     flames of\twhich the  capitalists,\t zamindars
\n     and the  Congress leaders\tof India, who have
\n     made it their profession to loot the country,
\n     will be  reduced to  ashes and on their ashes
\n     will be  established a Government of the poor
\n     and the downtrodden people of India.\n<\/p><\/blockquote>\n
\t  (d) It  will\tbe  a  mistake\tto  expect
\n     anything  from   the  Congress  relers.  They
\n     (Congress rulers) have set up V. Bhave in the
\n     midst of  the people  by causing  him wear\t a
\n     langoti  in  order\t to  divert  the  people’s
\n     attention from  their mistakes. To-day Vinova
\n     is playing\t a drama  on the  stage of  Indian
\n     politics. Confusion  is being   created among
\n     the people.  I want to tell Vinova and advice
\n     his agents,  “you should  understand  it  the
\n     people cannot  be deceived\t by this  illusion
\n     and fraud\tof Vinova”.  I shall vinova not to
\n     become a  puppet in  the of the Congress men.
\n     These  persons,   understand   the\t  Yojna-of
\n     Vinova, realise  that Vinova  is an  agent to
\n     the Congress Government.\n<\/p><\/blockquote>\n
\t  (e)  I   tell\t you  that  this  Congress
\n     Government will do no good to you.\n<\/p><\/blockquote>\n
777<\/span><\/p>\n
\t  (f) I want to tell the last word even to
\n     the Congress  Tyrants,  “you  play\t with  the
\n     people and\t ruin them  by entangling  them in
\n     the  mesh\tof  bribery,  black-marketing  and
\n     corruption. To-day\t the children  of the poor
\n     are hankering  for food  and you Congress men
\n     are assuming  the attitude\t of Nawabs sitting
\n     on the chairs…”\n<\/p><\/blockquote>\n
\t  Brought  or\tattempted  to  bring  into
\n     hatred or contempt or excited or attempted to
\n     excite disaffection  towards  the\tGovernment
\n     established by  law in  the Indian\t Union and
\n     thereby committed an offence punishable under
\n     section 124A  of the  Indian Penal\t Code  and
\n     within my cognizance.\n<\/p><\/blockquote>\n
\t  Secondly.-That you  on the  26th day\tof
\n     May, 1953\tat village  Barauni, P.\t S.  Tegra
\n     (Monghyr) made the statement, to wit, (a) To-
\n     day the  dogs of  the C.  I. D. are loitering
\n     round Barauni. Many official dogs are sitting
\n     even in  this meeting.  The people\t of  India
\n     drove out\tthe Britishers\tfrom this country,
\n     And elected  these Congress  Goondas  to  the
\n     gaddi and\tseated them  on it.  To-day  these
\n     Congress Goondas are sitting on the gaddi due
\n     to the  mistake of\t the people.  When we have
\n     driven out\t the Britishers,  we shall  strike
\n     and turn  out these  Congress Goondas.  These
\n     Congress  Goondas\t are  banking\tupon   the
\n     American dollars  and imposing  various kinds
\n     of taxes  on the  people to-day. The blood of
\n     our brothers  Mazdoors and\t Kisans\t is  being
\n     sucked. The  capitalists and the zamindars of
\n     this country  help\t these\tCongress  Goondas.
\n     These zamindars  and  capitalists\twill  also
\n     have to  be brought before the people’s Court
\n     along with these Congress Goondas.\n<\/p><\/blockquote>\n
778<\/span><\/p>\n
\t  (b) On  the strength of organisation and
\n     unity of  kisans  and  mazdoors  the  Forward
\n     Communist Party  will expose  the black-deeds
\n     of the  Congress Goondas,\twho are\t just like
\n     the Britishers.  Only the\tcolour of the body
\n     has changed. They have, to-day, established a
\n     rule of  lathis and  bullets in  the country.
\n     The Britishers had to go away from this land.
\n     They had  aeroplanes, guns,  bombs, and other
\n     reasons with them.\n<\/p><\/blockquote>\n
\t  (c) The Forward Communist party does not
\n     believe in\t the doctrine of votes itself. The
\n     party had always been believing in revolution
\n     and does  so even\tat present.  We believe in
\n     that revolution,  which will  come and in the
\n     flames of\twhich the  capitalists,\t zamindars
\n     and the  Congress leaders\tof India, who have
\n     made it their profession to loot the country,
\n     will be  reduced to ashes, and on their ashes
\n     will be  established a Government of the poor
\n     and the downtrodden people of India.\n<\/p><\/blockquote>\n
\t  (d) It  will\tbe  a  mistake\tto  expect
\n     anything  from   the  Congress  rulers.  They
\n     (Congress rulers) have set up V. Bhave in the
\n     midst of  the people  by causing  him wear\t a
\n     langoti in\t order to  divert the attention of
\n     the people from their mistakes. To-day Vinoba
\n     is playing\t a drama  on the  stage of  Indian
\n     politics. Confusion  is being  created  among
\n     the people.  I want to tell Vinova and advise
\n     his agents,  “You should  understand it  that
\n     the people\t cannot be deceived by this Yojna,
\n     illusion and  fraud of Vinova. I shall advice
\n     Vinova not to become a puppet in the hands of
\n     the   Congress   men.   Those   persons   who
\n     understand the  Yojna of Vinova, realise that
\n     Vinova is an agent of Congress Government.\n<\/p><\/blockquote>\n
779<\/span><\/p>\n
\t  (e) I tell you that no good will be done
\n     to you by this Congress Government.\n<\/p><\/blockquote>\n
\t  (f) I want to tell the last word even to
\n     Congress tyrants  “you play  with the  people
\n     and ruin  them by entangling them in the mesh
\n     of bribery,  black-marketing and  corruption.
\n     To-day the children of the poor are hankering
\n     for food  and you (Congress men) are assuming
\n     the  attitude   of\t Nawabs\t  sitting  on  the
\n     chairs”…….\n<\/p><\/blockquote>\n
\t  With intent to cause or which was likely
\n     to cause  fear or alarm to the public whereby
\n     any persons  might be  induce  to\tcommit\tan
\n     offence  against\tthe  State  of\tBihar  and
\n     against the  public tranquility,  and thereby
\n     committed an offence punishable under section
\n     505(b) of the Indian Penal Code and within my
\n     cognizance.\n<\/p><\/blockquote>\n
After recording\t  a  substantial  volume  of  oral
\nevidence, the  learned Trial  Magistrate convicted
\nthe accused  person both under ss. 124A and 505(b)
\nof the\tIndian Penal  Code, and\t sentenced him\tto
\nunder go  rigorous imprisonment\t for one  year. No
\nseparate sentence  was passed  in respect  of  the
\nconviction under the latter section.\n<\/p>\n
     The convicted  persons preferred an appeal to
\nthe High  Court of  Judicature at Patna, which was
\nheard by  the late Mr. Justice Naqui Imam, sitting
\nsingly. By  this judgment and order dated April 9,
\n1956, he  upheld the  convictions and the sentence
\nand dismissed  the appeal.  In the  course of  his
\njudgment, the  learned\tJudge  observed\t that  the
\nJudge  observed\t  of  the   charge   against   the
\nappellant was  nothing but  a vilification  of the
\nGovernment; that  it was  full of  incitements\tto
\nrevolution and\tthat the  speech taken\tas a whole
\nwas   certainly seditionus.  It is  not\t a  speech
\ncritising any  of is  measures. He  held that  the
\noffences both  under ss. 124A 505(b) of the Indian
\nPenal Code had been made out.\n<\/p>\n
780<\/span><\/p>\n
     The convicted  person moved  this\tCourt  and
\nobtained special  leave\t to  appeal.  It  will\tbe
\nnoticed\t that\tthe   constitutionality\t  of   the
\nprovisions  of\t the  sections\t under\twhich  the
\nappellant was  convicted had  not  been\t convassed
\nbefore the  High Court.\t But in\t the petition  for
\nspecial leave, to this Court, the ground was taken
\nthat ss.  124A and  505 of  the Indian\tPenal Code
\n“are inconsistent  with\t Art.  19(1)  (a)  of  the
\nConstitution”. The appeal was heard in this Court,
\nin the\tfirst instance, by a Division Bench on May
\n5, 1959.  The  Bench,  finding\tthat  the  learned
\ncounsel\t vco   the  appellant\thad   raised   the
\nconstitutional issue  as to  the validity  of  ss.
\n124A and  505 of  the Indian  Penal Code, directed
\nthat  the  appeal  be  placed  for  hearing  by\t a
\nConstitution  Bench.  The  case\t was  then  placed
\nbefore a  Constitution Bench, on November 4, 1960,
\nwhen that  Bench directed  notice to  issue to the
\nAttorney General  of India under r. 1, O.41 of the
\nSupreme Court  Rules. The  matter was  once  again
\nplaced before  a constitution Bench on February 9,
\n1961, when  it was  adjourned for  two\tmonths\tin
\norder to  enable the  State Governments\t concerned
\nwith this  appeal,  as\talso  with  the\t connected
\nCriminal Appeals  Nos. 124-126\tof 1958\t (in which
\nthe Government\tof Uttar Pradesh is the appellant)
\nto  make   up  their   minds  in  respect  of  the
\nproseocuions, as  also in  view of the report that
\nthe Law Commission was considering the question of
\namending the  law of  sedition in  view of the new
\nset-up. As  the States\tconcerned have\tinstructed
\ntheir counsel to press the appeals, the matter has
\nfinally come before us.\n<\/p>\n
     In Criminal Appeals 124-126 of 1958 the State
\nof Uttar  Pradesh is  the  appellant,  though  the
\nrespondents are different. In  Criminal appeal 124
\nof 1958,  the accused  person is  one Mohd,  Ishaq
\nIhahi. He  was prosecuted  for having  delivered a
\nspeech at  Aligarh as  Chairman of  the\t Reception
\nCommittee of  the All  India Muslim  Convention on
\nOctober 30,
\n781<\/span>
\n1953. His  speech on that occasion, was thought to
\nbe seditious.  After the  necessary sanction,  the
\nMagistrate held\t an enquiry,  and finding  a prima
\nfacie case made out against the accused, committed
\nhim to\tthe Court of Session. The learned Sessions
\nJudge, by  his Judgment\t dated\tJanuary\t 8,  1955,
\nacquitted him  of the  charge under  s. 153A,  but
\nconvicted him  of the  other charge under s. 124A,
\nof the\tIndian Penal  Code, and\t sentenced him\tto
\nrigorous imprisonment  for one year. The convicted
\nperson preferred  an appeal  to the High Court. In
\nthe High Court the constitutionality of s. 124A of
\nthe Indian Penal Code was challenged.\n<\/p>\n
     In Criminal Appeal No. 125 of 1958, the facts
\nare that  on  May  29,\t1954,  a  meeting  of  the
\nBolshovik   Party   was\t  organised   in   village
\nHanumanganj, in\t the District  of Basti,  in Uttar
\nPradesh. On  that occasion,  the  respondent  Rama
\nNand was  found to have delivered an objectionable
\nspeech in  so far  as  he  advocated  the  use\tof
\nviolence   for\t  overthrowing\t the\tGovernment
\nestablished by\tlaw. After  the\t sanction  of  the
\nGovernment to  the prosecution\thad been obtained,
\nthe  learned   Magistrate  held\t  an  enquiry  and
\nultimately committed  him to take his trial before
\nthe Court  of Sessions. In due course, the learned
\nSessions Judge\tconvicted the accused person under
\ns. 124A of the Indian Penal Code and sentenced him
\nto rigorous  imprisonment for three years. He held
\nthat the  accused person had committed the offence
\nby  inciting  the  audience  to\t an  open  violent
\nrebellion against  the Government  established\tby
\nlaw, by\t the use  of arms.  Against the\t aforesaid
\norder of  conviction  and  sentence,  the  accused
\nperson preferred  an appeal  to the  High Court of
\nAllahabad.\n<\/p>\n
     In\t Criminal   Appeal  126\t  of   1958,   the
\nrespondent  is\t one  Parasnath\t Tripathi.  He\tis
\nalleged to  have delivered  a  speech  in  village
\nMansapur,  P.S.\t  Akbarpur,  in\t the  district\tof
\nFaizabad, on  September 26,  1955, in  which he is
\nsaid to have
\n782<\/span>
\nexhorted the audience to organise a volunteer army
\nand resist  the Government  and\t its  servants\tby
\nviolent means. He is also said to have excited the
\naudience with  intent to create feelings of hatred
\nand enmity  against the\t Government. When  he  was
\nplaced on  trial for  an offence  under s. 124A of
\nthe  Indian Penal Code, the accused person applied
\nfor a  writ of\tHabeas Corpus in the High Court of
\nJudicature at.\tAllahabad on  the ground  that his
\ndetention was  illegal inasmuch\t as the provisions
\ns. 124A\t of the\t Indian Penal  Code were  void\tas
\nbeing in  contravention of  his fundamental rights
\nof free\t speech and expression under Art. 19(1)(a)
\nof the\tConstitution. This  matter, along with the
\nappeals which  have given rise to appeals Nos. 124
\nand 125,  as  aforesaid,  were\tultimately  placed
\nbefore a  Full Bench,  consisting of  Desai, Gurtu
\nand Beg,  JJ. The  learned judges, in separate but
\nconcurring judgments,  took the\t view that s. 124A
\nof the\tIndian Penal  Code was\tultra  vires  Art.
\n19(1)(a) of  the Constitution. In that view of the
\nmatter,\t they\tacquitted  the\taccussed  persons,
\nconvicted at aforesaid in the two appeals Nos. 124
\nand 125,  and granted  the writ\t petition  of  the
\naccused in  criminal Appeal  No. 126. In all these
\ncases  the   High  Court   granted  the\t necessary
\ncertificate  that   the\t case  involved\t important
\nquestions of law relating to the interpretation of
\nthe Constitution.  That is  how these  appeals are
\nbefore by  on a\t certificate of fitness granted by
\nthe High Court.\n<\/p>\n
     Shri C.  B. Agarwala,  who appeared on behalf
\nof the\tState of  Uttar Pradesh\t in support of the
\nappeals against\t the orders of acquittal passed by
\nthe High Court, contended that the judgment of the
\nHigh Court  (bow reported  in Ram  Nandan v. State
\n(1) in\twhich it  was laid  down by the Full Bench
\nthat s.\t 124A of  the Indian  Penal Code was ultra
\nArt. 19(1)(a) of the Constitution and,
\n783<\/span>
\ntherefore, void\t for the reason that it was not in
\nthe  interest\tof  public   order  and\t that  the
\nrestrictions imposed  there by were not reasonable
\nrestrictions  on   the\tfreedom\t  of  speech   and
\nexpression, was\t erroneous. He\tfurther\t contended
\nthat the  section impugned  came within the saving
\ncl. (2)\t of Art. 19, and that the reasons given by
\nthe High  Court to the contrary were erroneous. He
\nrelied upon  the observations of the Federal Court
\nin Niharendu  Dutt Majumdar  v. The  King  Emperor
\n(1). He\t also relied  on Stephen’s Commentaries on
\nthe Laws of England, Volume IV, 21st Edition, page
\n141, and  the Statement\t of the\t Law in Halsbury’s
\nLaws of England, 3rd Edition, volume 10, page 569,
\nand the\t cases referred\t to in\tthose volumes. Mr.
\nGopal  Behari,\t appearing  on\t behalf\t  of   the
\nrespondents in\tthe Allahabad  cases has  entirely
\nrelied\tupon   the  full  Bench\t decision  of  the
\nAllahabad High\tCourt in  his favour.  Shri Sharma
\nappearing on behalf of the appellant in the appeal
\nfrom the  Patna High  Court has\t similarly  relied
\nupon the  decision aforesaid of the Allahabad High
\nCourt.\n<\/p>\n
     Before dealing with the contentions raised on
\nbehalf of the parties, it is convenient to set out
\nthe history  of the  law, the  amendments  it  has
\nundergone and  the interpretations placed upon the
\nprovisions of  s. 124A by the Courts in India, and
\nby their  Lordships of\tthe judicial  Committee of
\nthe Privy Council. The section corresponding to s.
\n124A was  originally s.\t 113 of\t Macaulay’s  Draft
\nPenal Code of 1837-39, but the section was omitted
\nfrom the  Indian Penal\tCode as\t it was enacted in
\n1860. The reason for the omission from the Code is
\nenacted is  not clear, but perhaps the legislative
\nbody did  not feel  sure above\tits  authority\tto
\nenact such  a provision in the Code. Be that as it
\nmay, s.\t 124A was  not placed  on the Statute Book
\nuntil 1870, by Act XXVII of 1870. There
\n784<\/span>
\nwas a  considerable amount  of discussion  at  the
\ntime the  amendment was\t introduced by\tSir James,
\nStephen, but  what he  said while  introducing the
\nbill in\t the legislature  may not  be relevant for
\nour present  purposes. The section as then enacted
\nran as follows:\n<\/p>\n
\t  “124A. Exciting Disaffection-\n<\/p><\/blockquote>\n
\t  Whoever  by\twords,\teither\tspoken\tor
\n     intended to  be read,  or\tby  signs,  or\tby
\n     visible   representation,\t  or\totherwise,
\n     excites, or  attempts to  excite, feelings of
\n     disaffection to the Government established by
\n     law in  British India, shall be punished with
\n     transportation for\t life or  for any term, to
\n     which,   fine   may   be\tadded,\t or   with
\n     imprisonment for  a term  which may extend to
\n     three years,  to which  fine may be added, or
\n     with fine.\n<\/p><\/blockquote>\n
\t  Explanation-Such a disapprobation of the
\n     measures of  the Government  as is compatible
\n     with a disposition to render obedience to the
\n     lawful authority  of the  Government  and\tto
\n     support   the   lawful   authority\t  of   the
\n     Government\t against   unlawful  attempts\tto
\n     subvert or\t resist\t that  authority,  is  not
\n     disaffection.  Therefore,\t the   making\tof
\n     comments on  the measures\tof the Government,
\n     with the  intention  of  exciting\tonly  this
\n     species of\t disapprobation, is not an offence
\n     within this clause.”<\/p><\/blockquote>\n
     The first case in Indian that arose under the
\nsection is  what is  known as  the Bangobasi  case
\n(Queen-Empress v. Jagendra Chunder Bose (1)) which
\nwas tried  by a\t Jury before Sir Comer Petheram, C
\nJ. while  charging the\tjury,  the  learned  Chief
\nJustice explained  the law  to the  jury in  these
\nterms:\n<\/p>\n
785<\/span><\/p>\n
\t  “Disaffection means  a feeling  contrary
\n     to affection,  in\tother  words,  dislike\tor
\n     hatred.\tDisapprobation\t   means    simply
\n     disapproval.  It\tis   quite   possible\tto
\n     disapprove of  a men’s  sentiments or  action
\n     and yet  to like  him. The meaning of the two
\n     words is  so distinct  that I  feel it hardly
\n     necessary to  tell you that the contention of
\n     Mr. Jackson  cannot be sustained. If a person
\n     uses   either   spoken   or   written   words
\n     calculated to  create in  the  minds  of  the
\n     persons  to   whom\t they\tare  addressed\t a
\n     disposition not  to obey the lawful authority
\n     of the  Government, or  to subvert\t or resist
\n     that authority,  if and  when occasion should
\n     arise, and\t if he\tdoes so with the intention
\n     of creating such a disposition in his bearers
\n     or readers,  he will be guilty of the offence
\n     of attempting  to excite  disaffection within
\n     the  meaning   of\tthe   section  though\tno
\n     disturbance is  brought about by his words or
\n     any  feeling   of\tdisaffection,\tin   fact,
\n     produced by  them. It  is sufficient  for the
\n     purposes of  the section  that the words used
\n     are calculated to excite feelings of ill will
\n     against the  Government and  to hold it up to
\n     the hatred\t and contempt  of the  people, and
\n     that they\twere used  with the  intention\tto
\n     create such feeling.”<\/p><\/blockquote>\n
     The next  case  is\t the  celebrated  case\tof
\nQueen-Empress v.  Balqanqaddhar\t Tilak\t(1)  which
\ncame before  the Bobay\tHigh Court.  The case  was
\ntried by  a jury  before Strachey,  J. The learned
\njudge, in  the course  of his  charge to the jury,
\nexplain the law to them in these terms:\n<\/p>\n
\t  “The offence\tas defined  by\tthe  first
\n     clause is\texciting or  attempting to  excite
\n     feelings of  disaffection to  the Government.
\n     What are “feelings of disaffection” ? I agree
\n     with Sir Comer Petheram in the Bangobasi case
\n     that disaffection means simply the
\n786<\/span>
\n     absence of affection. It means hatred, enmity
\n     dislike, hostility,  contempt and\tevery from
\n     of ill-will  to the  Government. “Disloyalty”\n<\/p><\/blockquote>\n
     is\t  perhaps    the   best\t   general   term,
\n     comprehending  every  possible  form  of  bad
\n     feeling to\t the Government.  That is what the
\n     law means\tby the\tdisaffection which  a  man
\n     must not excite or attempt to excite; he must
\n     not make or try to make others feel enmity of
\n     any kind  towards the  Government.\t You  will
\n     observe that  the amount  or intensity of the
\n     disaffection is  absolutely immaterial except
\n     perhaps  in  dealing  with\t the  question\tof
\n     punishment: if  a man  excites or attempts to
\n     excite feelings  of  disaffection,\t great\tor
\n     small, he is guilty under the section. In the
\n     next  place,   it\tis  absolutely\timmaterial
\n     whether any  feelings  of\tdisaffection  have
\n     been excited  or not  by the  publication\tin
\n     question. It is true that there is before you
\n     a charge  against each  prisoner that  he has
\n     actually excited  feelings of disaffection to
\n     the Government.  If you are satisfied that he
\n     has done  so, you\twill, of  course, find him
\n     guilty. But if you should hold that charge is
\n     not made  out, and\t that no  one is proved to
\n     have been\texcited to  entertain feelings\tof
\n     disaffection to  the  Government  by  reading
\n     these articles,  still that  alone would  not
\n     justify you  in acquitting the prisoners. For
\n     each  of\tthem  is  charged  not\tonly  with
\n     exciting feelings\tof disaffection,  but also
\n     with attempting  to excite such feelings. You
\n     will   observe   that   section   places\ton
\n     absolutely the  same footing  the\tsuccessful
\n     exciting of  feelings of disaffection and the
\n     unsuccessful attempt to excite them, so that,
\n     if you  find that either of the prisoners has
\n     tried to  excite such  feeling in others, you
\n     must convict  him even if there is nothing to
\n     show that he succeeded. Again, it is
\n787<\/span>
\n     important\tthat   you  should  fully  realise
\n     another  point.   The  offence   consists\tin
\n     exciting or  attempting to\t excite in  others
\n     certain bad  feeling towards  the Government.
\n     It is  not\t the  exciting\tor  attempting\tto
\n     excite mutiny  or rebellion,  or any  sort of
\n     actual disturbance,  great or  small. Whether
\n     any disturbance  or outbreak  was\tcaused\tby
\n     there articles,  is absolutely immaterial. If
\n     the  accused  intended  by\t the  articles\tto
\n     excite  rebellion\tor  disturbance,  his  act
\n     would doubtless fall within section 124A, and
\n     would probably  fall within other sections of
\n     the  Penal\t Code.\tBut  even  if  he  neither
\n     excited nor  intended to excite any rebellion
\n     or outbreak  or forcible  resistance  to  the
\n     authority of  the\tGovernment,  still  if\the
\n     tried to  excite feelings\tof enmity  to  the
\n     Government, that  is sufficient  to make  him
\n     guilty under  the section.\t I am  aware  that
\n     some distinguished\t persons have thought that
\n     there can\tbe no  offence against the section
\n     unless  the   accused  either   counsels\tor
\n     suggests rebellion\t or forcible resistance to
\n     the Government.  In my  opinion, that view is
\n     absolutely opposed\t to the\t express words\tof
\n     the  section  itself,  which  as  plainly\tas
\n     possible makes  the exciting or attempting to
\n     excite certain feelings, and not the inducing
\n     or attempting  to induce  to  any\tcourse\tof
\n     action  such   as\t rebellion   or\t  forcible
\n     resistance, the  test of  guilt. I\t can  only
\n     account for  such a view by attributing it to
\n     a\tcomplete  misreading  of  the  explanation
\n     attached\tto   the   section,   and   to\t a
\n     misapplication of\tthe explanation beyond its
\n     true scope.”\n<\/p><\/blockquote>\n
The long quotation has become necessary in view of
\nwhat followed  later, namely,  that this statement
\nof the\tlaw by\tthe learned  judge came\t in for\t a
\ngreat deal of comment and judicial notice. We have
\nomitted the charge to the jury relating
\n788<\/span>
\nto  the\t  explanation  to  s.  124A  because  that
\nexplanation  has   now\tyielded\t  place\t to  three
\nseparate explanations in view of judicial opinions
\nexpressed later. The jury, by a majority of six to
\nthree,\tfound\tShri  Balgangadhar  Tilak  guilty.
\nSubsequently, he, on conviction, applied under cl.
\n41 of  the Letters  Patent for\tleave to appeal to
\nthe Privy  Council. The application was heard by a
\nFull Bench  consisting of Farran, C. J., Candy and
\nStrachey, JJ.  It was  contended before\t the  High
\nCourt at  the leave  stage, inter  alia, that  the
\nsanction  given\t  by  the   Government\t was   not
\nsufficient in  law in  that it had not set out the
\nparticulars  of\t  the  offending   articles,  and,
\nsecondly, that\tthe judge  misdirected the jury as
\nto the\tmeaning of the word “disaffection” insofar
\nas he said that it might be equivalent to “absence
\nof affection”.\tWith regard  to the  second point,
\nwhich is  only relevant\t point before us; the Full
\nBench expressed itself to the following effect:\n<\/p>\n
\t  “The other ground upon which Mr. Russell
\n     has asked\tas to  certify that  this is a fit
\n     case to be sent to Her Majesty in Council, is
\n     that there\t has been  a misdirection,  and he
\n     based his argument on one major and two minor
\n     grounds.  The   major  ground  was\t that  the
\n     section  cannot   be  said\t  to   have   been
\n     contravened  unless   there   is\ta   direct
\n     incitement to  stir up disorder or rebellion.
\n     That appears  to us  to be\t going much beyond
\n     the words of the section, and we need not say
\n     more upon that ground. The first of the minor
\n     points  is\t  that\tMr.  Justice  Strachey\tin
\n     summing up\t the case  to the jury stated that
\n     disaffection meant the absence of affection”.
\n     But although  if that  phrase had stood alone
\n     it might  have misled  the jury, yet taken in
\n     connection with  the context  we think  it is
\n     impossible that  the  jury\t could\thave  been
\n     misled by\tit. That  expression was  used\tin
\n     connection with the
\n789<\/span>
\n     law as  led down  by Sir  Comer Petheram,\tin
\n     Calcutta in  the Bangobashi  case. There  the
\n     Chief Justice  instead  of\t using\tthe  words
\n     “absence  of   affection”\tused   the   words
\n     “contrary\tto   affection”.  If   the   words
\n     “contrary to affection” had been used instead
\n     of “absence  of affection” in this case there
\n     can be  no doubt  that the\t summing up  would
\n     have  been\t  absolutely   correct\t in   this
\n     particular. But  taken in connection with the
\n     context  it   is  clear  that  by\tthe  words
\n     “absence of  affection” the learned Judge did
\n     not mean  the negation  of affection but some
\n     active sentiment on the other side. Therefore
\n     on that  point we\tconsider  that\twe  cannot
\n     certify that this is a fit case for appeal.”
\n\t  In this connection it must be remembered
\n     that it  is not alleged that there has been a
\n     miscarriage of Justice.”\n<\/p><\/blockquote>\n
After making  those observations,  the Full  Bench
\nrefused the  application for  leave. the  case was
\nthen taken  to Her  Majesty in\tcouncil, by way of
\napplication for\t special leave\tto appeal  to  the
\nJudicial Committee.  Before their Lordships of the
\nPrivy Council, Asquith, Q. C., assisted by counsel
\nof great experience and eminence like Mayne, W. C.
\nBonnerjee and  others, contended  that there was a
\nmisdirection as\t to the meaning of section 124A of
\nthe Penal  Code\t in  that  the\toffence\t had  been
\ndefined in  terms  to  wide  to\t the  effect  that
\n“disaffection” meant simply “absence of affection”
\nand that  it comprehended  every possible  form of
\nbad feeling  to the Government. In this connection
\nreference  was\t made  to   the\t observations\tof
\nPetheram,  C.J.\t  in  Queen-Empress   v.  Jogender
\nBose(1).  It   was   also   contended\tthat   the
\nappellant’s comments
\n790<\/span>
\nhad  not   exceeded  what   in\tEngland\t would\tbe
\nconsidered  within   the  functions  of\t a  Public
\njournalist, and\t that the  misdirection complained
\nof was\tof the\tgreatest importance  not merely to
\nthe affected person but to the whole of the Indian
\nPress and  also to all her Majesty’s subjects; and
\nthat it\t injuriously affected  the liberty  of the
\npress and  the right  to  free\tspeech\tin  public
\nmeetings. But  in spite\t of the strong appeal made
\non behalf of the petitioner for special leave, the
\nLord Chancellor,  delivering the  opinion  of  the
\nJudicial   Committee,\t while\t dismissing    the
\napplication, observed  that taking  a view  of the
\nwhole of  the summing  up they\tdid  not  see  any
\nreason to  dissent from\t it, and  that keeping\tin
\nview the  rules which  Their Lordships observed in
\nthe matter of granting leave to appeal in criminal
\ncases, they  did not  think   that the case raised
\nquestions which\t deserve further  consideration by
\nthe Privy  Council. (vide Gangadhar Tilak v. Queen
\nEmpress) (1).\n<\/p>\n
     Before noticing  the further  changes in  the
\nStatute, it  is necessary  to refer  to\t the  Full
\nBench decision\tof the\tAllahabad  High\t Court\tin
\nQueen Empress  v. Amba\tPrasad (2).  In that case,
\nEdge, C.J.,  who delivered  the\t judgment  of  the
\nCourt, made  copious quotations from the judgments
\nof the\tCalcutta and the Bombay High Courts in the
\ncases above  referred to. While generally adopting
\nthe reasons for the decisions in the aforesaid two
\ncases, the  learned Chief  Justice observed that a
\nman may\t be guilty  of the  offence defined  in s.
\n124A  of   attempting  to   excite   feelings\tof
\ndisaffection against the Government established by
\nlaw in\tBritish India,\talthough in  a\tparticular
\narticle\t or   speech  he   may\tinsist\t upon  the
\ndesirability  or   expediency\tof   obeying   and
\nsupporting the\tGovernment. He also made reference
\nto the\tdecision of  the Bombay\t High Court in the
\nSatara (3)  case.  In  that  case  a  Full  Bench,
\nconsisting  of\t Farran,  C.J.,\t and  Parsons  and
\nRanade, JJ,
\n791<\/span>
\nhad laid  it down  that the word “disaffection” in
\nthe section  is used in a special sense as meaning
\npolitical alienation  or discontent  or disloyalty
\nto the Government or existing authority. They also
\nheld that  the meaning\tof word\t “disaffection” in
\nthe main  portion of the section was not varied by
\nthe explanation.  Persons, J.,\theld that the word
\n“disaffection” could  not be  construed as meaning
\n‘absence of  or contrary  of affection\tor  love’.
\nRanade J., interpreted the word “disaffection” not
\nas meaning  mere absence  or negation  of love\tor
\ngood will  but a  positive  feeling  of\t aversion,
\nwhich  is   akin   to\till   will,   a\t  definite
\ninsubordination\t of   authority\t or   seeking\tto
\nalienate  the\tpeople\tand  weaken  the  bond\tof
\nallegiance, a  feeling which  tends to\tbring  the
\nGovernment into hatred and discontent, by imputing
\nbase and  corrupt motives to it. The learned Chief
\nJustice of  the Allahabad High Court observed that
\nif those  remarks were\tmeant to  be in\t any sense
\ndifferent from\tthe construction  placed upon  the
\nsection by  Strachey, J.,  which was  approved, as
\naforesaid, by  the Judicial Committee of the Privy
\nCouncil, the later observations of the Bombay High
\nCourt could  not be  treated as\t authoritative. As
\nthe accused  in the  Allahabad\tcase  had  pleaded
\nguilty and  the appeal\twas more  or less  on  the
\nquestion of  sentence, it  was not  necessary  for
\ntheir  Lordships   to  examine\t in   detail   the
\nimplications of the section, though they expressed
\ntheir general  agreement  with\tthe  view  of  the
\nCalcutta and  the Bombay  High Courts in the first
\ntwo cases, referred to above.\n<\/p>\n
     The section  was amended  by the Indian Penal
\nCode Amendment\tAct (IV\t of 1898).  As a result of
\nthe  amendment,\t the  single  explanation  to  the
\nsection\t  was\t replaced   by\t  three\t  separate
\nexplanations as they stand now. The section, as it
\nnow stands  in its  present form, is the result of
\nthe several  A.O.S. of\t1937, 1948  and 1950, as a
\nresult\tof  the\t constitutional\t changes,  by  the
\nGovernment of India Act, 1935, by the Independence
\nAct of 1947 and by the Indian
\n792<\/span>
\nConstitution of\t 1950. Section\t124A,  as  it  has
\nemerged after  successive  amendments  by  way\tof
\nadaptations as aforesaid, reads as follows:\n<\/p>\n
\t  “Whoever  by\twords,\teither\tspoken\tor
\n     written,  or   by\t signs\t or   by   visible
\n     representation,  or   otherwise,  brings\tor
\n     attempts to bring into hatred to contempt, or
\n     excites or\t attempts to  excite  disaffection
\n     towards the  Government established by law in
\n     India shall  be punished  with transportation
\n     for life  or any  shorter term  to which fine
\n     may be  added or  with imprisonment which may
\n     extend to\tthree years,  to which fine may be
\n     added, or with fine.\n<\/p><\/blockquote>\n
\t  Explanation\t 1.\tThe\texpression
\n     “disaffection” includes  disloyalty  and  all
\n     feelings of enmity.\n<\/p><\/blockquote>\n
\t  Explanation\t2.   Comments\texpressing
\n     disapprobation  of\t  the  measures\t  of   the
\n     Government\t with\ta  view\t to  obtain  their
\n     alteration by  lawful means,  without exiting
\n     or attempting  to excite  hatred, contempt or
\n     disaffection do  not  constitute  an  offence
\n     under this section.\n<\/p><\/blockquote>\n
\t  Explanation\t3.   Comments\texpressing
\n     disapprobation of the administrative of other
\n     action of\tthe Government without exciting or
\n     attempting\t to  excite  hatred,  contempt\tor
\n     disaffection, do  not constitute  an  offence
\n     under this section.”<\/p><\/blockquote>\n
     This offence, which is generally known as the
\noffence of  Sedition, occurs  in chapter IV of the
\nIndian Penal Code, headed ‘Of offences against the
\nState’. This  species of offence against the State
\nwas not an invention of the British. Government in
\nIndia,\tbut   has  been\t  known\t in   England  for
\ncenturies.  Every  State,  whatever  its  form\tof
\nGovernment, has\t to be\tarmed with  the\t power\tto
\npunish those who, by
\n793<\/span>
\ntheir conduct, jeopardise the safety and stability
\nof the\tState, or  disseminate\tsuch  feelings\tof
\ndisloyalty as  have the\t tendency to  lead to  the
\ndisruption of  the State or to public disorder. In
\nEngland, the  crime has\t thus  been  described\tby
\nStephen\t in   his  Commentaries\t on  the  Laws\tof
\nEngland, 21st  Edition, volume\tIV, at\tpages 141-
\n142, in these words.\n<\/p>\n
\t  “Section IX.\tSedition and  Inciting\tto
\n     Disaffection-We  are   now\t  concerned   with
\n     conduct which, on the one hand, fall short of
\n     treason, and  on the  other does  not involve
\n     the use  of force\tor violence.  The law  has
\n     here  to\treconcile  the\tright  of  private
\n     criticism with  the necessity of securing the
\n     safety and\t stability of  the State. Sedition
\n     may be  defined as\t conduct which has, either
\n     as its  object or as its natural consequence,
\n     the unlawful  display of dissatisfaction with
\n     the Government  or with the existing order of
\n     society.\n<\/p><\/blockquote>\n
\t  The seditious\t conduct may  be by words,
\n     by deed,  or by  writing. Five specific heads
\n     of sedition  may be  enumerated according\tto
\n     the object of the accused. This may be either\n<\/p><\/blockquote>\n
\t  1. to\t excite disaffection  against  the
\n     King, Government, or Constitution, or against
\n     Parliament or the administration of justice;\n<\/p><\/blockquote>\n
\t  2. to\t promote, by  unlawful means,  any
\n     alteration in Church or State;\n<\/p><\/blockquote>\n
\t  3. to incite a disturbance of the peace;<\/p><\/blockquote>\n
\t  4. to\t raise discontent among the King’s
\nsubjects;\n<\/p>\n
\t  5. to excite class hatred.\n<\/p><\/blockquote>\n
\t  It must  be observed\tthat criticism\ton
\n     political matters is not of itself seditious.
\n     The test  is the  manner in which it is made.
\n     Candid and\t honest discussion  is\tpermitted.
\n     The law
\n794<\/span>
\n     only interferes  when the\tdiscussion  passes
\n     the bounds of fair criticism. More especially
\n     will  this\t be  the  case\twhen  the  natural
\n     consequence of  the prisoner’s  conduct is to
\n     promote public disorder.”<\/p><\/blockquote>\n
     This statement  of the  law is derived mainly
\nfrom the  address to the Jury by Fitzerald, J., in
\nthe case  of Reg v. Alexander Martin Sullivan (1).
\nIn the\tcourse of  his address\tto  the\t Jury  the
\nlearned Judge observed as follows:\n<\/p>\n
\t  “Sedition is\ta crime\t against  society,
\n     nearly allied  to that  of\t treason,  and\tit
\n     frequently\t  precedes    treason\tby   short
\n     interval.\t Sedition    in\t  itself    is\t a
\n     comprehensive term, and it embraces all those
\n     practices, whether\t by word, deed or writing,
\n     which   are   calculated\tto   disturb   the
\n     tranquility of  the State,\t and lead ignorant
\n     persons   to   endeavour\tto   subvert   the
\n     Government and  the laws  of the  empire. The
\n     objects of\t sedition generally  are to induce
\n     discontent\t and   insurrection  and  stir\tup
\n     opposition to  the Government,  and bring the
\n     administration of\tjustice into contempt; and
\n     the very  tendency of  sedition is\t to incite
\n     the people\t to  insurrection  and\trebellion.
\n     Sedition has been described, as disloyalty in
\n     action and\t the law considers as sedition all
\n     those practices  which have  for their object
\n     to excite\tdiscontent or  dissatisfaction, to
\n     create public  disturbance,  or  to  lead\tto
\n     civil war;\t to bring  into hatred or contempt
\n     the Sovereign  or the Government, the laws or
\n     constitution of  the realm, and generally all
\n     endeavours to promote public disorder.”<\/p><\/blockquote>\n
     That the  law  has\t not  changed  during  the
\ncourse of  the centuries is also apparent from the
\nfollowing statement  of the  law by Coleridge, J.,
\nin the course of his summing up to the Jury in the
\ncase of Rex. v. Aldred (2):\n<\/p>\n
795<\/span><\/p>\n
\t  “Nothing is clearer than the law on this
\n     head-namely, that whoever by language, either
\n     written or spoken incites or encourages other
\n     to use  physical force  or violence  in  some
\n     public matter  connected with  the State,\tis
\n     guilty of\tpublishing a  seditious libel. The
\n     word  “sedition”\tin  its\t ordinary  natural
\n     signification   denotes\ta    tumult,\tan
\n     insurrection,  a  popular\tcommotion,  or\tan
\n     uproar; it implies violence or lawlessness in
\n     some form….”\n<\/p><\/blockquote>\n
In that\t case, the  learned Judge was charging the
\nJury in\t respect of the indictment which contained
\nthe charge  of seditious libel by a publication by
\nthe defendant.\n<\/p>\n
     While dealing  with a case arising under Rule
\n34(6) (e)  of the Defence of India Rules under the
\nDefence of  India Act  (XXXV of\t 1939) Sir Maurice
\nGwyer, C.J.,  speaking for the Federal Court, made
\nthe  following\t observations  in   the\t case\tof
\nNiharendu Dutt\tMajumdar v.  The King Emperor (1);
\nand has\t pointed out  that the language of s. 124A
\nof the\tIndian\tPenal  Code,  which  was  in  pari
\nmateria with  that of  the Rule\t in question,  had
\nbeen adopted  from the\tEnglish Law,  and referred
\nwith approval  to the  observations of\tFitzerald,
\nJ.,  in\t the  case  quoted  above;  and\t made  the
\nfollowing observations which are quite apposite:\n<\/p>\n
\t  “…generally speaking,  we  think  that
\n     the passage  accurately states  the law as it
\n     is to  be gathered\t from an  examination of a
\n     great number of judicial pronouncements.
\n\t  The first  and most  fundamental duty of
\n     every  Government\t is  the  preservation\tof
\n     order, since order is the condition precedent
\n     to all  civilisation and the advance of human
\n     happiness.\t This\tduty  has  no  doubt  been
\n     sometimes performed in such
\n796<\/span>
\n     a way  as to  make the  remedy worse than the
\n     disease; but it does not cease to be a matter
\n     of obligation  because some  on whom the duty
\n     rests have\t performed it  ill. It\tis to this
\n     aspect of the functions of government that in
\n     our opinion  the offence  of sedition  stands
\n     related. It  is the  answer of  the State\tto
\n     those who,\t for the  purpose of  attacking or
\n     subverting\t it,  seek  (to\t borrow\t from  the
\n     passage   cited   above)\tto   disturb   its
\n     tranquillity, to  create  public  disturbance
\n     and to promote disorder, or who incite others
\n     to do so. Words, deeds or writings constitute
\n     sedition, if they have this intention or this
\n     tendency; and  it is easy to see why they may
\n     also constitute  sedition, if  they seek,\tas
\n     the  phrase  is,  to  bring  Government  into
\n     contempt. This  is not  made  an  offence\tin
\n     order to  minister to  the wounded\t vanity of
\n     Government, but  because where Government and
\n     the law cease to be obeyed because no respect
\n     is felt any longer for them, only anarchy can
\n     follow. Public  disorder, or  the\treasonable
\n     anticipation   or\t  likelihood   of   public
\n     disorder, is  thus the  gist of  the offence.
\n     The acts  or words\t complained of must either
\n     incite to\tdisorder or  must be  such  as\tto
\n     satisfy  reasonable   men\t that\tis   their
\n     intention or tendency.”\n<\/p><\/blockquote>\n
This statement\tof the\tlaw was\t not  approved\tby
\ntheir Lordships\t of the\t Judicial Committee of the
\nPrivy Council  in  the\tcase  of  King-Emperor\tv.
\nSadashiv Narayan  Bhalerao (1). The Privy Council,
\nafter quoting  the  observations  of  the  learned
\nchief  Justice\tin  Niharendu’s\t case  (2),  while
\ndisapproving of the decision of the Federal Court,
\nobserved that there was no statutory definition of
\n“Sedition” in England, and the meaning and content
\nof  the\t  crime\t had   to  be  gathered\t from  any
\ndecisions.\n<\/p>\n
797<\/span><\/p>\n
But those  were not  relevant considerations  when
\none had\t to construe  the statutory  definition of
\n‘Sedition’ as  in the Code. The Privy Council held
\nthat the  language of  s. 124A,\t or  of\t the  Rule
\naforesaid, under  the Government of India Act, did
\nnot justify  the statement  of the  law as made by
\nthe learned  Chief Justice  in Niharendu’s case(1)
\nthey  also   held  that\t  the  expression  “excite
\ndisaffection” did  not include\t“excite disorder”,
\nand that,  therefore, the  decision of the Federal
\nCourt in  Niharendu’s case(1) proceeded on a wrong
\nconstruction of\t s. 124A of the Penal Code, and of
\nsub-para (e),  sub-rule (6)  of\t Rule  34  of  the
\nDefence of  India Rules;  Their Lordships approved
\nof the\tdicta in  the case  of Bal Gangadhar Tilak
\n(2), and  in the  case of Annie Basant v. Advocate
\nGeneral of Madras (3), which was a case under s. 4
\nof the\tIndian Press  Act. (I  of 1910), which was
\nclosely similar\t in language  to s.  124A  of  the
\nPenal Code.\n<\/p>\n
     The Privy\tCouncil\t also  referred\t to  their
\nprevious  decision   in\t Wallace  Johnson  v.  The
\nKinq(4) which  was a case under sub s. 8 of s. 326
\nof the\tCriminal Code  of the  Gold  Coast,  which
\ndefined “seditious  intention” in terms similar to
\nthe words  of s.124A  of the  Penal Code.  In that
\ncase,  their   Lordships  had\tlaid   down   that
\nincitement   to\t  violence   was   not\t necessary
\ningredient of  the Crime of sedition as defined in
\nthat law.\n<\/p>\n
     Thus, there  is a direct conflict between the
\ndecision of  the Federal Court in Niharendu’s case
\n(1) and\t of the Privy Counsil in a number of cases
\nfrom Indian and the Gold Coast, referred to above.
\nIt is also clear that either view can be taken and
\ncan be\tsupported on  good  reasons.  The  Federal
\nCourt  decision\t  takes\t into\tconsideration,\tas
\nindicated above,  the pre-exiting  Common  Law\tof
\nEngland in respect of sedition. It does not appear
\nfrom the report of
\n798<\/span>
\nthe  Federal   Court  decision\tthat  the  rulings
\naforesaid of the Privy Council had been brought to
\nthe notice  of\ttheir  Lordships  of  the  Federal
\nCourt.\n<\/p>\n
     So\t far  as  this\tCourt  is  concerned,  the
\nquestion directly  arising  for\t determination\tin
\nthis batch  of cases  has not  formed the  subject
\nmatter\tof   decision  previously.   But   certain
\nobservations made  by this Court in some cases, to
\nbe  presently\tnoticed,  with\treference  to  the
\ninterrelation  between\t freedom  of   speech  and
\nseditious writing  or speaking\thave been  made in
\nthe very  first year  of the  coming into force of
\nthe    Constitution.\t Two\tcases\t involving
\nconsideration of  the fundamental right of freedom
\nof speech  and expression and certain laws enacted
\nby some\t of the\t States imposing  restrictions\ton
\nthat right  came up  for consideration before this
\nCourt. Those  cases, reported in Romesh Thappar v.
\nThe State  of Madras<\/a>(1)\t and Brij  Bhushan v.  The
\nState of  Delhi<\/a>(2) were\t heard by Kania C.J., Pazl
\nAli,  Patanjali\t  Shastri,  Mehr   Chand  Mahajan,
\nMukherjea  and\t Das,  JJ,   and  judgments   were
\ndelivered on  the same\tday  (May  26,\t1950).\tIn
\nRomesh Thappar’s  case (1),  the majority  of  the
\nCourt declared s. 9(1-A) of the Madras Maintenance
\nof Public  Order Act  (Mad. XXXIII of 1949), which
\nhad authorised\timposition of  restrictions on the
\nfundamental right  of freedom  of speech, to be in
\nexcess of  cl. (2)  of Art. 19 of the Constitution
\nauthorising  such  restrictions,  and,\ttherefore,
\nvoid and  unconstitutional. In Brij Bhushan’s case
\n(2), the  same majority\t struck down s. 7(1)(c) of
\nthe  East  Punjab  Public  Safety  Act,\t 1949,\tas
\nextended to the Province of Delhi, authorising the
\nimposition  of\trestrictions  on  the  freedom\tof
\nspeech and  expression for preventing or combating
\nany activity prejudicial to the public safety or
\n799<\/span>
\nthe maintenance\t of public  order. The\tCourt held
\nthose provisions  to be\t in excess  of the  powers
\nconferred on the Legislature by cl. (2) of Art. 19
\nof the Constitution. Mr. Justice Patanjali Sastri,
\nspeaking for  the majority  of the Court in Romesh
\nThappar’s case (1) made the following observations
\nwith reference\tto the\tdecisions of  the  Federal
\nCourt and  the Judicial\t Committee  of\tthe  Privy
\nCouncil as  to what  the law  of Sedition in India
\nwas:\n<\/p>\n
\t  “It is also worthy of note that the word
\n     “sedition” which occurred in article 13(2) of
\n     the  Draft\t  Constitution\tprepared   by  the
\n     Drafting Committee\t was  deleted  before  the
\n     article was  finally passed as article 19(2).
\n     In this  connection it  may be  recalled that
\n     the Federal  Court had,  in defining sedition
\n     in\t Niharendu   Dutt  Majumdar  v.\t The  King
\n     Emperor (2)  held that  “the  acts\t or  words
\n     complained of  must either incite to disorder
\n     or must  be such as to satisfy reasonable men
\n     that that\tis their  intention or\ttendency”,
\n     but the Privy Council overruled that decision
\n     and   emphatically\t   reaffirmed\tthe   view
\n     expressed in  Tilak’s case to the effect that
\n     “the  offence   consisted\tin   exciting\tor
\n     attempting to  excite in  others certain  bad
\n     feelings towards  the Government  and not\tin
\n     exciting or  attempting to\t excite mutiny\tor
\n     rebellion, or any sort of actual disturbance,
\n     great or  small” -King  Emperor  v.  Sadashiv
\n     Narayan  Bhalerao.\t  Deletion  of\t the  word
\n     “sedition”\t from  the  draft  article  13(2),
\n     therefore, shows that criticism of Government
\n     exciting disaffection  or bad feelings toward
\n     it is  not to  be regarded\t as  a\tjustifying
\n     ground  for   restricting\tthe   freedom\tof
\n     expression and  of the  press, unless  it\tis
\n     such as  to undermine the security of or tend
\n     to\t overthrow   the   State.   It\t is   also
\n     significant that the corresponding
\n800<\/span>
\n     Irish  formula  of\t “undermining  the  public
\n     order or the authority of the State” (article
\n     40(6)(i) of  the Constitution  of Fire, 1937)
\n     did  not  apparently  find\t favour\t with  the
\n     framers of\t the  Indian  Constitution.  Thus,
\n     very narrow  and stringent\t limits have  been
\n     set to permissible legislative abridgement of
\n     the right\tof free speech and expression, and
\n     this was  doubtless due  to  the  realisation
\n     that freedom  of speech  and of the press lay
\n     at\t  the\tfoundation   of\t  all\tdomocratic
\n     organisations,  for  without  free\t political
\n     discussion no  public education, so essential
\n     for the  proper functioning  of the processes
\n     of popular\t government, is\t possible, freedom
\n     of such  amplitude\t might\tinvolve\t risks\tof
\n     abuse. But\t the framers  of the  Constitution
\n     may well have reflected, with Madison who was
\n     “the leading spirit in the preparation of the
\n     First Amendment  of the Federal Constitution”
\n     that “it  is better  to leave  a few  of  its
\n     naxious branches  to their\t luxuriant growth,
\n     than, by  prunning, them  away to\tinjure the
\n     vigour of those yielding the proper fruits” :
\n     (quoted in Near v. Minnesotta).\n<\/p><\/blockquote>\n
Those observations  were made  to  bring  out  the
\ndifference between the “security of the State” and
\n“public order”.\t As the\t latter expression did not
\nfind a place in Art. 19(2) of the Constitution, as
\nit stood  originally, the  section was struck down
\nas unconstitutional.  Fazl Ali, J., dissented from
\nthe views  thus\t expressed  by\tthe  majority  and
\nreiterated his observations in Brij Bhushan’s case
\n(1) In\tthe course  of his dissenting judgment, he
\nobserved as follows:\n<\/p>\n
\t  “It appears  to me  that in the ultimate
\n     analysis the  real question  to be decided in
\n     this case\tis  whether  “disorders\t involving
\n     menace to the
\n801<\/span>
\n     peace and\ttranquillity of\t the Province” and
\n     affecting “Public\tsafety” will  be a  matter
\n     which undermines the security of the State or
\n     not. I  have borrowed the words quoted within
\n     inverted commas  from the preamble of the Act
\n     which shows  its scope  and necessity and the
\n     question  raised\tbefore\tus  attacking  the
\n     validity of the Act must be formulated in the
\n     manner I have suggested. If the answer to the
\n     question is in the affirmative, as I think it
\n     must  be,\t then  the   impugned  law   which
\n     prohibits entry  into the\tState of Madras of
\n     “any document  or\tclass  of  documents”  for
\n     securing public  safety  and  maintenance\tof
\n     public order  should satisfy the requirements
\n     laid   down   in\tarticle\t  19(2)\t  of   the
\n     Constitution. From the trend of the arguments
\n     addressed to  us, it  would appear\t that if a
\n     document is  seditious, its  entry\t could\tbe
\n     validly prohibited,  because  sedition  is\t a
\n     matter which  undermines the  Security of the
\n     State; but if on the other hand, the document
\n     is calculated  to disturb public tranquillity
\n     and affect public safety, its entry cannot be
\n     prohibited,  because   public  disorder   and
\n     disturbance of  public tranquillity  are  not
\n     matters which  undermine the  security of the
\n     State.  Speaking\tfor   myself,\tI   cannot
\n     understand this  argument. In Brij Bhushan v.
\n     The State.\t I have\t quoted good  authority to
\n     show that\tsedition owes  its gravity  to its
\n     tendency to create disorders and authority on
\n     Criminal  Law  like  Sir  James  Stephen  has
\n     classed sedition as an offence against public
\n     tranquillity.”\n<\/p><\/blockquote>\n
In Brij\t Bhushan case  (1), Fazl  Ali, J., who was
\nagain the  dissenting judge,  gave his\treasons to
\ngreater detail. He referred to the judgment of the
\nFederal Court  in Niharendu  Dutt Majumdar’s  case
\n(2)<\/span>
\n802<\/span>
\nand to\tthe judgment  of the  Privy Council to the
\ncontrary in King Emperor v. Sada Shiv Narayan (1).
\nAfter having pointed out the divergency of opinion
\nbetween\t the   Federal\tCourt  of  India  and  the
\nJudicial  Committee  of\t the  Privy  Council,  the
\nlearned Judge  made the\t following observations in
\norder to  explaim why  the term “sedition” was not
\nspecifically  mentioned\t  in  Art.  19(2)  of  the
\nConstitution:\n<\/p>\n
\t  “The framers\tof the\tConstitution  must
\n     have therefore  found themselves face to face
\n     with the  dilemma\tas  to\twhether\t the  word
\n     “sedition” should\tbe used\t in article  19(2)
\n     and if it was to be used in what sense it was
\n     to be  used. On  the one hand, they must have
\n     had  before   their  mind\t the  very  widely
\n     accepted\tview\tsupported   by\t  numerous
\n     authorities that  sedition was essentially an
\n     offence against  public tranquillity  and was
\n     connected in  some way  or other  with public
\n     disorder; and,  on the  other hand, there was
\n     the pronouncement\tof the\tJudicial Committee
\n     that sedition  as defined in the Indian Penal
\n     Code did  not necessarily imply any intention
\n     or tendency  to  incite  disorder.\t In  these
\n     circumstances, it is not surprising that they
\n     decided not  to use  the word  “sedition”\tin
\n     clause (2)\t but used  the more  general words
\n     which  cover  sedition  and  everything  else
\n     which makes  sedition such a serious offence.
\n     That sedition  does undermine the security of
\n     the State\tis a  matter which cannot admit of
\n     much doubt.  That it  undermines the security
\n     of the  state usually  through the\t medium of
\n     public disorder  is also  a matter\t on  which
\n     eminent  Judges   and  jurists   are  agreed.
\n     Therefore,\t it  is\t difficult  to\thold  that
\n     public  disorder  or  disturbance\tof  public
\n     tranquillity are  not matters which undermine
\n     the security of the State.”<\/p><\/blockquote>\n
803<\/span><\/p>\n
     As a  result  of  their  differences  in  the
\ninterpretation of  Art.19(2) of\t the Constitution,
\nthe Parliament\tamended cl.(2)\tof Art. 19, in the
\nform  in  which\t it  stands  at\t present,  by  the
\nConstitution (First  Amendment) Act, 1951, by s. 3
\nof the Act, which substituted the original cl. (2)
\nby the\tnew cl.\t (2). This amendment was made with
\nretrospective  effect,\tthus  indicating  that\tit
\naccepted the  statement of the law as contained in
\nthe dissenting judgment of Fazl Ali, J., in so far
\nas  he\t had  pointed  out  that  the  concept\tof
\n“security of  the state”  was very  much allied to
\nthe   concept\tof   “public   order”\tand   that
\nrestrictions on\t freedom of  speech and expression
\ncould validly be imposed in the interest of public
\norder.\n<\/p>\n
     Again  the\t  question  of\t the   limits\tof
\nlegislative   powers   with   reference\t  to   the
\nprovisions of  Arts. 19\t (1)(a) and  19(2) of  the
\nConstitution   came   up   for\t decision   by\t a
\nConstitution Bench of this Court in Ramji Lal Modi
\nv. The\tState of  U.P.<\/a>\t(1).  In  that\tcase,  the
\nvalidity of  s. 295A  of the Indian Penal Code was
\nchallenged  on\t the  ground   that   it   imposed
\nrestrictions on\t the fundamental  right of freedom
\nof  speech   and  expression   beyond  the  limits
\nprescribed  by\t cl.(2)\t of   Art.   19\t  of   the
\nConstitution.  In   this  connection,\tthe  Court
\nobserved as follows:\n<\/p>\n
\t  “the question\t for our  consideration is
\n     whether the  impugned section can be properly
\n     said  to\tbe  a\tlaw  imposing\treasonable
\n     restrictions   on\t the   exercise\t  of   the
\n     fundamental rights\t to freedom  of speech and
\n     expression in  the interests of public order.
\n     It will  be noticed that language employed in
\n     the amended  clause is  “in the interests of”
\n     and not  “for the\tmaintenance of”. As one of
\n     us pointed\t out in Debi Saron v. The State of
\n     Bihar, the\t expression “in\t the interests of”
\n     makes the\tambit of the protection very wide.
\n     A law may not have
\n804<\/span>
\n     been designed  to\tdirectly  maintain  public
\n     order and yet it may have been enacted in the
\n     interests of public order.”\n<\/p><\/blockquote>\n
Though\tthe   observations  quoted  above  do  not
\ndirectly bear  upon the\t present controversy, they
\nthrow a\t good deal  of light upon the ambit of the
\npower of  the  legislature  to\timpose\treasonable
\nrestrictions on\t the exercise  of the  fundamental
\nright of freedom of speech and expression.\n<\/p>\n
     In this  case, we are directly concerned with
\nthe question how for the offence, as defined in s.
\n124A of\t the Indian Penal Code, is consistent with
\nthe fundamental\t right guaranteed  by Art.  19 (1)\n<\/p>\n
(a) of the Constitution, which is in these terms:\n<\/p>\n
     “19. (1) All citizens shall have the right.\n<\/p><\/blockquote>\n
\t  (a)\tto    freedom\tof    speech   and\nexpression...\"\n<\/pre>\n
This guaranteed\t right is  subject to the right of
\nthe legislature to impose reasonable restrictions,
\nthe ambit of which is indicated by cl. (2), which,
\nin its amended form, reads as follows:\n<\/p>\n
\t  “(2) Nothing in sub-clause (a) of clause
\n     (1)  shall\t  affect  the\toperation  of  any
\n     existing law or prevent the State from making
\n     any law,  in  so  far  as\tsuch  law  imposes
\n     reasonable restrictions  on the  exercise\tof
\n     the right conferred by the said sub-clause in
\n     the interests  of the  security of the State,
\n     friendly  relations   with\t foreign   States,
\n     public order,  decency  or\t morality,  or\tin
\n     relation to  contempt of court, defamation or
\n     incitement to an offence.”\n<\/p><\/blockquote>\n
It has\tnot been  questioned before  us\t that  the
\nfundamental right  guaranteed by  Art. 19(1)(a) of
\nthe freedom  of speech\tand expression\tis not\tan
\nabsolute right. It is common ground that the right
\nis subject  to\tsuch  reasonable  restrictions\tas
\nwould come  within the\tpurview of  cl. (2), which
\ncomprises (a)  security of the State, (b) friendly
\nrelations with\tforeign States,\t (c) public order,\n<\/p>\n
(d) decency  or morality,  etc. With  reference to
\nthe constitutionality
\n805<\/span>
\nof s.  124A or s. 505 of the Indian Penal Code, as
\nto  how\t  far  they   are  consistent\twith   the
\nrequirements of cl. (2) of Art. 19 with particular
\nreference to  security of  the\tState  and  public
\norder, the  section, it\t must be  noted, penalises
\nany spoken  or written\twords or  signs or visible
\nrepresentations, etc.,\twhich have  the effect\tof
\nbringing, or which attempt to bring into hatred or
\ncontempt  or   excites\tor   attempts  to   excite
\ndisaffection towards the Government established by
\nlaw” has to be distinguished from the person’s for
\nthe  time   being  engaged   in\t carrying  on  the
\nadministration. “Government established by law” is
\nthe  visible   symbol  of   the\t State.\t The  very
\nexistence of  the State will be in jeopardy if the
\nGovernment established\tby law is subverted. Hence
\nthe  continued\t existence   of\t  the\tGovernment
\nestablished by\tlaw is\tan essential  condition of
\nthe  stability\t of  the   State.  That\t  is   why
\n‘sedition’, as\tthe offence  in s.  124A has  been
\ncharacterised, comes  under Chapter VI relating to
\noffences against  the State. Hence any acts within
\nthe meaning  of s.  124A which\thave the effect of
\nsubverting  the\t  Government  by   bringing   that
\nGovernment into\t contempt or  hatred, or  creating
\ndisaffection against it, would be within the penal
\nstatute because\t the feeling  of disloyalty to the
\nGovernment established\tby law\tor  enmity  to\tit
\nimports the idea of tendency to public disorder by
\nthe  use  of  actual  violence\tor  incitement\tto
\nviolence. In  other words,  any written\t or spoken
\nwords, etc.,  which have implicit in them the idea
\nof subverting  Government by  violent means, which
\nare   compendiously    included\t  in\tthe   term
\n‘revolution’, have  been made penal by the section
\nin question.  But the  section has  taken care\tto
\nindicate clearly that strong words used to express
\ndisapprobation of  the measures of Government with
\na view\tto  their  improvement\tor  alteration\tby
\nlawful means  would not\t come within  the section.
\nSimilarly, comments,
\n806<\/span>
\nhowever strongly worded, expressing disapprobation
\nof actions  of the  Government,\t without  exciting
\nthose feelings\twhich generate\tthe inclination to
\ncause public  disorder by  acts of violence, would
\nnot  be\t penal.\t In  other  words,  disloyalty\tto
\nGovernment established\tby law\tis  not\t the  same
\nthing as  commenting  in  strong  terms\t upon  the
\nmeasures or  acts of  Government, or its agencies,
\nso as to ameliorate the condition of the people or
\nto secure  the cancellation or alteration of those
\nacts or\t measures by lawful means, that is to say,
\nwithout exciting  those\t feelings  of  enmity  and
\ndisloyalty  which   imply  excitement\tto  public
\ndisorder or the use of violence.\n<\/p>\n
     It has not been contended before us that if a
\nspeech or  a writing excites people to violence or
\nhave the  tendency to  create public  disorder, it
\nwould  not   come   within   the   definition\tof
\n‘sedition’. What  has been  contended  is  that\t a
\nperson who makes a very strong speech or uses very
\nvigorous words\tin a  writing directed\tto a  very
\nstrong criticism of measures of Government or acts
\nof public  officials, might  also come\twithin the
\nambit of  the penal  section. But, in our opinion,
\nsuch words  written or spoken would be outside the
\nscope of  the section.\tIn this\t connection, it is
\npertinent to  observe that  the\t security  of  the
\nState, which  depends upon  the maintenance of law
\nand order  is the  very basic  consideration  upon
\nwhich  legislation,   with  a  view  to\t punishing
\noffences against  the State, is undertaken. Such a
\nlegislation has, on the one hand, fully to protect
\nand  guarantee\t the   freedom\t of   speech   and
\nexpression,  which  is\tthe  sine  quo\tnon  of\t a
\ndemocratic   form    of\t  Government\tthat   our
\nConstitution has  established. This  Court, as the
\ncustodian and  guarantor of the fundamental rights
\nof the\tcitizens, has  the duty\t cast upon  it\tof
\nstriking down  any law\twhich unduly restricts the
\nfreedom of speech and expression with which we are
\nconcerned in  this case. But the freedom has to be
\nguarded again
\n807<\/span>
\nbecoming   a\tlicence\t  for\tvilification   and
\ncondemnation of the Government established by law,
\nin  words   which  incite  violence  or\t have  the
\ntendency to  create public disorder. A citizen has
\na right\t to say\t or write  whatever he likes about
\nthe  Government,   or  its  measures,  by  way\tof
\ncriticism or  comment, so  long\t as  he\t does  not
\nincite people  to violence  against the Government
\nestablished  by\t law  or  with\tthe  intention\tof
\ncreating  public   disorder.   The   Court,   has,
\ntherefore, the\tduty cast  upon it  of\tdrawing\t a
\nclear line  of demarcation  between the ambit of a
\ncitizen’s fundamental  right guaranteed under Art.
\n19(1)(a) of  the Constitution and the power of the
\nlegislature to\timpose reasonable  restrictions on
\nthat guaranteed\t right in  the interest\t of, inter
\nalia, security\tof the\tState and public order. We
\nhave, therefore, to determine how far the ss. 124A
\nand 505\t of the Indian Penal Code could be said to
\nbe within  the justifiable  limits of legislation.
\nIf it  is  held,  in  consonance  with\tthe  views
\nexpressed by  the Federal  Court in  the  case\tof
\nNiharendu Dutt\tmajumdar v.  The  King\tEmperor(1)
\nthat the  gist of  the offence\tof  ‘sedition’\tis
\nincitement to  violence or  the\t tendency  or  the
\nintention  to  create  public  disorder\t by  words
\nspoken or  written, which have the tendency or the
\neffect of  bringing the\t Government established by
\nlaw  into   hatred   or\t  contempt   or\t  creating
\ndisaffection in\t the sense  of disloyalty  to  the
\nState in  other words  bringing the  law into line
\nwith the  law of  sedition in  England, as was the
\nintention of  the legislators when they introduced
\ns. 124A\t into the  Indian Penal\t Code in  1870\tas
\naforesaid, the\tlaw will be within the permissible
\nlimits laid  down in  cl. (2)  of Art.\t19 of  the
\nConstitution, if  on the  other\t hand  we  give\t a
\nliteral meaning\t to  the  words\t of  the  section,
\ndivorced from  all the\tantecedent  background\tin
\nwhich the  law of sedition has grown, as laid down
\nin the several decisions of the Judicial Committee
\nof the Privy Council, it will be true to
\n808<\/span>
\nsay that  the section  is not only within but also
\nvery much  beyond the  limits laid down in cl. (2)
\naforesaid.\n<\/p>\n
     In view  of the  conflicting decisions of the
\nFederal Court  and of  the Privy Council, referred
\nto above, we have to determine whether and how far
\nthe provisions\tof ss.\t124A and 505 of the Indian
\nPenal\tCode   have   to   be\tstruck\t down\tas
\nunconstitutional. If  we accept the interpretation
\nof the Federal Court as to the gist of criminality
\nin  an\t alleged  crime\t  of   sedition,   namely,
\nincitement to  disorder or  tendency or likelihood
\nof  public  disorder  or  reasonable  apprehension
\nthereof, the  section may  lie within the ambit of
\npermissible  legislative   restrictions\t  on   the
\nfundamental  right   of\t freedom   of  speech  and
\nexpression. There  can be no doubt that apart from
\nthe provisions of (2) of Art. 19, ss. 124A and 505
\nare clearly  violative of  Art.\t 19(1)(a)  of  the
\nConstitution. But  then we have to see how far the
\nsaving clause,\tnamely, cl.(2) of Art. 19 protects
\nthe sections  aforesaid. Now,  as already  pointed
\nout, in\t terms of  the\tamended\t cl.  (2),  quoted
\nabove, the expression “in the interest of…public
\norder” are  words of  great amplitude and are much
\nmore comprehensive  than the  expression “for  the
\nmaintenance of”,  as observed by this Court in the
\ncase of\t Virendra v.  The State of Punjab<\/a> (1). Any
\nlaw which  is enacted  in the  interest of  public
\norder may be saved from the vice of constitutional
\ninvalidity. If, on the other hand, we were to hold
\nthat even  without any\ttendency  to  disorder\tor
\nintention to  create disturbance of law and order,
\nby the use of words written or spoken which merely
\ncreate disaffection  or feelings of enmity against
\nthe  Government,   the\toffence\t  of  sedition\tis
\ncomplete,  then\t such  an  interpretation  of  the
\nsections would\tmake them unconstitutional in view
\nof Art.\t 19(1)(a) read\twith cl.  (2). It  is well
\nsettled\t that\tif  certain   provisions  of   law
\nconstrued in one way would make
\n809<\/span>
\nthem consistent with the Constitution, and another
\ninterpretation would render them unconstitutional,
\nthe Court  would lean  in  favour  of  the  former
\nconstruction. The  provisions of the sections read
\nas a  whole, along  with the explanations, make it
\nreasonably  clear   that  the\tsections  aim\tat
\nrendering penal\t only such  activities as would be
\nintended, or  have a  tendency, to create disorder
\nor  disturbance\t of  public  peace  by\tresort\tto
\nviolence. As already pointed out, the explanations
\nappended to  the main  body of the section make it
\nclear that criticism of public measures or comment
\non Government  action,\thowever\t strongly  worded,
\nwould be  within reasonable  limits and\t would\tbe
\nconsistent with\t the fundamental  right of freedom
\nof speech  and expression.  It is  only\t when  the
\nwords, written\tor spoken,  etc.  which\t have  the
\npernicious  tendency   or  intention  of  creating
\npublic disorder\t or disturbance\t of law\t and order
\nthat the  law steps  in to prevent such activities
\nin the interest of public order. So construed, the
\nsection,  in  our  opinion,  strikes  the  correct
\nbalance between\t individual fundamental rights and
\nthe interest  of public\t order. It  is also   well
\nsettled that  in  interpreting\tan  enactment  the
\nCourt should have regard not merely to the literal
\nmeaning of  the words  used, but  also\ttake  into
\nconsideration  the   antecedent\t history   of  the
\nlegislation, its purpose and the mischief it seeks
\nto  suppress   (vide  (1)).  The  Bengal  Immunity
\nCompany Limited\t v. The State of Bihar<\/a> (1) and (2)
\nR.M.D. Chamarbaugwalla\tv. The Union of India<\/a> (2).
\nViewed in  that light, we have no hesitation in so
\nconstruing the provisions of the sections impugned
\nin these  cases as  to limit  their application to
\nacts involving\tintention or  tendency\tto  create
\ndisorder, or  disturbance of  law  and\torder,\tor
\nincitement to violence.\n<\/p>\n
     We may  also consider  the legal position, as
\nit should  emerge, assuming  that the main s. 124A
\nis
\n810<\/span>
\ncapable of being construed in the literal sense in
\nwhich the  Judicial Committee of the Privy Council
\nhas construed  it in  the cases referred to above.
\nOn that\t assumption, it\t is not open to this Court
\nto construe  the section is such a way as to avoid
\nthe alleged  unconstitutionality by  limiting  the
\napplication of the section in the way in which the
\nFederal Court  intended\t to  apply  it\t?  In  our
\nopinion, there\tare decisions  of this Court which
\namply justify  our taking  that view  of the legal
\nposition.  This\t Court,\t in  the  case\tof  R.M.D.
\nChamarbaugwalla v.  The Union  of  India<\/a>  (1)  has
\nexamined in  detail the\t several decisions of this
\nCourt, as  also\t of  the  Courts  in  America  and
\nAustralia. After  examining those  decisions, this
\nCourt came  to the conclusion that if the impugned
\nprovisions of a law come within the constitutional
\npowers of  the legislature by adopting one view of
\nthe words  of the  impugned section  or\t Act,  the
\nCourt will  take that view of the matter and limit
\nits application\t accordingly, in preference to the
\nview  which  would  make  it  unconstitutional\ton
\nanother view of the interpretation of the words in
\nquestion. In  that case,  the Court  had to choose
\nbetween a  definition  of  the\texpression  ‘Prize
\nCompetitions” as  limited  to  those  competitions
\nwhich were of a gambling character and those which
\nwere   not.    The   Court    chose   the   former
\ninterpretation\twhich\tmade  the   rest  of   the
\nprovisions of  the  Act,  Prize\t Competitions  Act
\n(XLII of 1955), with particular reference to ss. 4
\nand 5  of the  Act and\tRules  11  and\t12  framed
\nthereunder, valid. The Court held that the penalty
\nattached only to those competitions which involved
\nthe element  of gambling and those competitions in
\nwhich success  depended to a substantial degree on
\nskill were  held to  be out  of the purview of the
\nAct. The  ratio decidendi  in that  case,  in  our
\nopinion, applied  to the case in hand in so far as
\nwe propose  to limit  its operation  only to  such
\nactivities as come within the ambit of
\n811<\/span>
\nthe observations  of the Federal Court, that is to
\nsay, activities\t involving incitement  to violence
\nor intention or tendency to create public disorder
\nor cause disturbance of public peace.\n<\/p>\n
     We do not think it necessary to discuss or to
\nrefer in  detail  to  the  authorities\tcited  and
\ndiscussed   in\t  the\treported    case    R.M.D.
\nChamarbaugwalla v. The Union of India<\/a> (1) at pages
\n940 to\t952. We may add that the provisions of the
\nimpugned  sections,  impose  restrictions  on  the
\nfundamental freedom  of speech and expression, but
\nthose restrictions cannot but be said to be in the
\ninterest of  public order  and within the ambit of
\npermissible  legislative  interference\twith  that
\nfundamental right.\n<\/p>\n
     It\t is   only  necessary\tto   add   a   few
\nobservations with respect to the constitutionality
\nof s. 505 of the Indian Penal Code. With reference
\nto each\t of the\t three clauses\tof the section, it
\nwill be\t found that the gravamen of the offence is
\nmaking, publishing  or circulating  any statement,
\nrumour or report (a) with intent to cause or which
\nis likely to cause any member of the Army, Navy or
\nAir Force to mutiny or otherwise disregard or fail
\nin his duty as such; or (b) to cause fear or alarm
\nto the public or a section of the public which may
\ninduce the  commission of  an offence  against the
\nState or  against public  tranquillity; or  (c) to
\nincite or  which is  likely to incite one class or
\ncommunity of  persons to commit an offence against
\nany other  class or community. It is manifest that
\neach  one  of  the  constituent\t elements  of  the
\noffence under  s. 505  has  reference  to,  and\t a
\ndirect effect  on, the\tsecurity of  the State\tor
\npublic order.  Hence, these  provisions would  not
\nexceed the  bounds of  reasonable restrictions\ton
\nthe right  of freedom of speech and expression. It
\nis clear,
\n812<\/span>
\ntherefore, that\t cl. (2)  of Art.  19 clearly save
\nthe section from the vice of unconstitutionality.\n<\/p>\n
     It has not been contended before us on behalf
\nof the\tappellant in C.A. 169 of 1957 or on behalf
\nof the\trespondents in the other appeals (No. 124-
\n126 of\t1958) that  the words used by them did not
\ncome within  the  purview  of  the  definition\tof
\nsedition as  interpreted by  us. No arguments were
\nadvanced before\t us  to\t show  that  even  on  the
\ninterpretation given  by us  their cases  did  not
\ncome within  the mischief  of the one or the other
\nsection,  as   the  case   may\tbe.   It  follows,
\ntherefore, that\t the Criminal  Appeal 169  of 1957
\nhas to\tbe dismissed.  Criminal Appeals 124-126 of
\n1958 will  be remanded\tto the\tHigh Court to pass
\nsuch order  as it  thinks fit  and proper  in  the
\nlight of the interpretation given by us.\n<\/p>\n
\t\t Appeal No. 169 of 1957 dismissed.\n<\/p>\n
\t  Appeals Nos. 124 to 126 of 1958 allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Kedar Nath Singh vs State Of Bihar on 20 January, 1962 Equivalent citations: 1962 AIR 955, 1962 SCR Supl. (2) 769 Author: B P Sinha Bench: Sinha, Bhuvneshwar P.(Cj), Das, S.K., Sarkar, A.K., Ayyangar, N. Rajagopala, Mudholkar, J.R. PETITIONER: KEDAR NATH SINGH Vs. RESPONDENT: STATE OF BIHAR DATE OF JUDGMENT: 20\/01\/1962 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-67555","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKedar Nath Singh vs State Of Bihar on 20 January, 1962 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kedar-nath-singh-vs-state-of-bihar-on-20-january-1962\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kedar Nath Singh vs State Of Bihar on 20 January, 1962 - 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