CONSTITUTIONALITY OF SEDITION LAW UNDER IPC AND IMPORTANCE OF AMENDMENT UNDER BNS

Authored By – Shrestha Chaurasia, IMS Unison University, Dehradun

INTRODUCTION

“When the government fears the people, there is liberty. When the people fear the government, there is tyranny.” – Thomas Jefferson

The preamble to the Indian Constitution declares India a “Democratic Republic.” For a nation to be truly democratic, there must be a balance between national security and an individual’s right to dissent. However, the fine line between state power and individual freedom often becomes blurred, making it challenging to maintain harmony.

Consider a scenario: a student leader at a prestigious university is put behind bars for allegedly ‘inciting disaffection’ against the government. Despite peacefully protesting against government policies on corruption and inequality, he is charged with sedition. Do his actions truly justify a sedition charge? This scenario perfectly depicts a common trend where legitimate public dissent, rather than being recognized as a crucial part of democracy, is criminalized under archaic sedition laws. The historic debate reappears: can sedition have a place in a democratic system that has its foundation in the freedom of speech and expression?

The sedition law dates back to the British colonial era, where it was conveniently used as an instrument to suppress anti-British sentiments and isolate freedom fighters from the general public. Post-independence, however, the law has become an effective means to stifle dissent against the government’s policies and actions, unfairly targeting journalists, activists, and even ordinary citizens who dare to question the status quo. Recent cases like Kedar Nath Singh v State of Bihar (1962) have highlighted the inconsistencies within the law, with the Hon’ble Supreme Court clarifying that mere criticism of the government, without instigating violence or disrupting public order, cannot be punished as sedition. Nonetheless, the law is still being misused, making citizens susceptible to unjust prosecutions.

In a remarkable shift, the Indian Parliament passed the Bharatiya Nyaya Sanhita, 2023 (BNS), a legal framework intended to replace the Indian Penal Code (IPC). Although the legislation has been introduced as a legal reform, it contains provisions strikingly similar to the sedition law under IPC. This has sparked a debate: Does sedition still serve any legitimate purpose, or is it merely a strategy for political dominance?

This article examines the constitutionality of sedition law under the IPC and the importance of its amendment under BNS. It also explores the harmonious equilibrium between ensuring national security and preserving democratic rights.

Keywords:

Constitutional Law, Criminal Law, Section 124A IPC, Section 152 BNS, Sedition, Supreme Court Cases, Democratic Rights, National Security, Free Speech, Article 19(1)(a), Colonial Legacy, Judicial Review, Public Order.

Meaning, Definition & Explanation

Chapter VI of the Indian Penal Code (IPC) deals with ‘Offences against the State.’ This chapter comprises Sections 121 to 130, wherein Section 124A criminalizes and punishes sedition. It states:

“Whoever by words, either spoken or written, or by signs, or by visible representations, or otherwise, brings or attempts to bring hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”

Simply put, sedition occurs when an individual uses speech, writing, signs, or visual representations to incite hatred, contempt, or disaffection against the government. The term ‘disaffection,’ as explained in Explanation 1 to the provision, includes disloyalty and all feelings of enmity towards the government. However, mere disapproval of government policies or actions, without inciting violence or public disorder, does not constitute sedition.

This provision clearly shows that the sedition law is focused on preventing activities that provoke rebellion, threaten national security, or disrupt public tranquility.

Historical Background / Evolution

• Pre-Independence

Although the IPC was enacted in 1860, the British colonial administration added the law of sedition to it in 1870. The British feared that the growing Khilafat movement in the Indian subcontinent would wage war against them. This law was introduced as a means to suppress increasing nationalist sentiments and opposition to colonial rule in India.

The first notable case under Section 124A was Queen v Jogendra Chunder Bose (1891). Bose was charged under Section 124A for his publication Bangobasi, in which he criticized the Age of Consent Act, 1891, as an imposition on Hindu traditions. The British authorities claimed that his writings incited rebellion, but the case was eventually dropped after he was released on bail.

Another landmark trial was that of Lokmanya Tilak in 1897. In his newspapers, Kesari and Mahratta, Tilak published articles glorifying Shivaji and condemning British rule. Justice Arthur Strachey expanded the scope of sedition by including an ‘attempt to incite feelings of enmity’ within its definition. Tilak was convicted and sentenced to 18 months of rigorous imprisonment. Again, in 1908, he was charged with sedition and sentenced to six years in Burma.

The father of the nation, Mahatma Gandhi, was also charged with sedition in 1922 for his articles in Young India, where he strongly criticized British policies. During his trial, he famously referred to Section 124A as the “prince among political sections of the IPC designed to suppress the liberty of the citizens.”

• Post-Independence

Following independence, the sedition law was heavily criticized and scrutinized. The High Courts of Punjab and Allahabad both ruled Section 124A unconstitutional, but the Supreme Court affirmed its constitutional validity in Kedarnath Singh v State of Bihar (1962).

In the 21st century, the sedition law has been misused against several politicians, activists, and journalists, including:

  • Praveen Togadia (2003)
  • Simranjit Singh Mann (2005)
  • Binayak Sen (2007)
  • Arundhati Roy (2010)
  • Aseem Trivedi (2012)
  • Rinshad Reera (2019)
  • Disha Ravi (2020)

Comparison with Other Countries

• Status of Sedition Laws in the United Kingdom

Although the United Kingdom introduced sedition laws in India, it abolished them within its own territory. The British Parliament repealed the law through Section 73 of the Coroners and Justice Act, 2009. The key reason behind this decision was that sedition cannot coexist with modern democratic values.

In R. v Sullivan (1868), Justice Fitzgerald emphasized that “the very tendency of sedition is to incite the people to insurrection and rebellion” and denied truth as a defense against sedition. However, the UK moved away from this interpretation after being influenced by the Canadian Supreme Court’s ruling in R. v Boucher (1951), which restricted sedition to cases involving only ‘incitement to violence.’

• Status of Sedition Laws in the United States

The Sedition Act of 1798 was the first legislation in the U.S. to criminalize false statements against the federal government. However, it was repealed in 1801 due to concerns that it was overly oppressive.

Over time, judicial scrutiny limited its scope:

  • Schenck v United States (1919) introduced the ‘clear and present danger’ test for restricting speech.
  • Brandenburg v Ohio (1969) held that speech could only be restricted if it incited imminent unlawful activity.

Unlike India, the U.S. applies sedition only in cases where speech leads to direct violence.

• Status of Sedition Laws in Australia

In Australia, sedition was punishable under the Crimes Act, 1920, but was replaced in 2010 with ‘urging violence offences.’ This ensures that democratic free speech principles are upheld.

Constitutional Validity of Section 124A IPC

Case 1: Tara Singh Gopi Chand v. The State

In this case, the constitutional validity of Section 124A of the IPC was challenged for the first time before the Punjab High Court. Master Tara Singh, a political leader, was prosecuted for delivering two speeches—one at Shahabad (Karnal District) in July 1950 and another at Ludhiana in August 1950. He was charged under Sections 124A and 153A of the Indian Penal Code, along with Section 24(a) of the East Punjab Public Safety Act. While the trial was still pending before the Court of Special Magistrate at Karnal, Tara Singh challenged the constitutionality of these provisions, arguing that they violated Article 19(1)(a) of the Indian Constitution and should therefore be struck down.

Issue

  • Whether Section 124A (Sedition) and Section 153A (Promoting Enmity) violated Article 19(1)(a) of the Indian Constitution, which guarantees freedom of speech and expression.

Judgment

The Punjab High Court declared Sections 124A and 153A of the IPC, along with Section 24(a) of the East Punjab Public Safety Act, unconstitutional. Justice C.J. Weston held that Section 124A imposed unreasonable restrictions on free speech and criminalized mere criticism of the government without incitement to violence. He highlighted that “a law of sedition thought necessary during a period of foreign rule has become inappropriate… and must be held to have become void.” The court ruled that not all instances of enmity between groups undermined the security of the State and, therefore, Section 153A was also struck down. Furthermore, aligning with the Hon’ble Supreme Court’s ruling in Brij Bhushan v. State of Delhi, the court declared Section 24(a) of the East Punjab Safety Act unconstitutional. Tara Singh’s trial was quashed, and he was ordered to be released immediately.

Case 2: Sabir Raza v. The State

In 1958, the Allahabad High Court addressed a constitutional challenge to sedition law. The appellant, Sabir Raza, was prosecuted for delivering a speech that severely criticized the Chief Minister of Uttar Pradesh. He was charged under Section 124A of the IPC.

Issue

  1. Whether speech criticizing an individual holding a governmental office constitutes sedition under Section 124A of the IPC.
  2. Whether such application of Section 124A violated Article 19(1)(a) of the Indian Constitution, which guarantees freedom of speech and expression.

Judgment

Justice Raghubar Dayal emphasized that a change in the person holding the position of President, Governor, or Minister does not mean a change in the government established by law. He stated that speech exciting feelings of hatred, contempt, or disaffection towards an individual holding a government office does not equate to exciting such feelings towards the government itself and is not covered under Section 124A. The court noted that disrupting public order threatens the state’s security only when it involves actions like rebellion or mutiny. As a result, Sabir Raza’s speech, despite severely criticizing the Chief Minister, was not considered seditious.

Case 3: Ram Nandan v. State

In this case, an appeal was preferred to the Allahabad High Court against the judgment of the Sessions Judge, Basti, convicting the appellant and sentencing him to three years of imprisonment.

Issue

  • Whether Section 124A of the IPC imposes unreasonable restrictions on free speech or whether these restrictions are necessary in the interest of public order and national security.

Judgment

The Allahabad High Court declared Section 124A unconstitutional. Justice M.C. Desai ruled that mere disaffection or criticism of the government did not pose a threat to public order or state security. He noted that only speech that incites violence or rebellion could justify restrictions, but Section 124A was too broad and criminalized even non-violent criticism. The court held that Section 124A of IPC violated Article 19(1)(a) of the Indian Constitution. As a result, Ram Nandan’s conviction was overturned, and he was acquitted.

Case 4: Kedar Nath Singh v. State of Bihar

In 1962, the Hon’ble Supreme Court, for the first time, dealt with the constitutional validity of Section 124A of the IPC.

Issue

  1. Whether Section 124A of the IPC violates Article 19(1)(a) of the Constitution, which guarantees freedom of speech and expression.
  2. Whether the restrictions imposed by Section 124A were reasonable and necessary for maintaining public order and national security.

Judgment

A five-judge Bench of the Supreme Court upheld the constitutional validity of Section 124A of the IPC but limited its scope to speech or expression that incites violence, public disorder, or poses a direct threat to state security. Justice Bhuvneshwar P. Sinha ruled that “criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression.” However, when words, speech, or signs have the pernicious tendency or intention of creating public disorder, the law needs to step in. Kedar Nath’s speech contained elements of incitement, and hence his conviction was upheld.

Case 5: S.G. Vombatkere v. Union of India

Issue

  1. Whether Section 124A of the IPC infringes upon the right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution.
  2. Whether the sedition law is a reasonable restriction on free speech in the interest of public order.
  3. Whether Section 124A violates Article 14 (equality before law) and Article 21 (Right to life and personal liberty) of the Indian Constitution.

Judgment/Orders

The case is still pending before a larger Constitutional Bench. An interim order dated May 11, 2022, has been passed staying the operation of Section 124A. The court refused to defer the case despite the government’s plan to replace the law with new legislation.

BNS and Sedition: A Legal Shift

The Bharatiya Nyaya Sanhita, 2023, replaced the Indian Penal Code, 1860. One of the most debated changes introduced was replacing the colonial-era sedition law with Section 152 BNS, which retains the essence of Section 124A IPC but focuses on threats to India’s sovereignty, unity, and integrity.

Section 152 BNS v. Section 124A IPC

  • Section 152 BNS criminalizes any act that “excites or attempts to excite secession, armed rebellion, or subversive activities or encourages separatist sentiments that endanger the sovereignty, unity, and integrity of India.”
  • It expands beyond speech-based offenses, introducing electronic communication and financial means.
  • Unlike Section 124A IPC, which focused on inciting disaffection against the government, Section 152 BNS shifts focus to endangering national sovereignty.
  • The penal consequences are harsher, making the provision more prone to misuse.

Significance and Impact

While BNS replaces Section 124A, concerns persist regarding its broad and vague wording. The recent Tejender Pal Singh v. State of Rajasthan (2024) ruling highlights potential misuse.

Conclusion & Comments

The constitutionality of sedition laws in India remains a contested issue. While the repeal of Section 124A IPC was seen as a progressive step, Section 152 BNS has revived concerns over government overreach. Judicial scrutiny is essential to ensure that freedom of speech is not stifled under the guise of national security. The legislature must provide clear statutory definitions and safeguards to prevent misuse of sedition-like provisions.

REFERENCES

  1. Books / Commentaries / Journals Referred
    • K. Takwani, Indian Penal Code (Eastern Book Co. 2021).
    • D. Gaur, Commentary on The Indian Penal Code (3rd ed. 2019).
    • Ratanlal Ranchhoddas, Ratanlal & Dhirajlal’s The Indian Penal Code (Act XLV of 1860) (Wadhwa & Co. 2007).
    • N. Misra, Indian Penal Code (23rd ed. 2023).
  2. Online Articles / Sources Referred
  3. Cases Referred
    • Aime Boucher v. The King, [1951] S.C.R. 265 (Can.).
    • Brandenburg v. Ohio, 395 U.S. 444 (1969).
    • Brij Bhushan v. State of Delhi, AIR 1950 SC 129 (India).
    • Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955, 1962 Supp. (2) SCR 769 (India).
    • Queen-Empress v. Jogendra Chunder Bose & Ors., (1892) ILR 19 Cal 35 (India).
    • R v. Sullivan, (1868) 11 Cox C.C. 44 (UK).
    • Ram Nandan v. State, AIR 1959 All 101 (India).
    • G. Vombatkere v. Union of India, 2022 LiveLaw (SC) 470 (India).
    • Sabir Raza v. State, Crim. App. No. 1434 of 1955, (All. HC 1958).
    • Schenck v. United States, 249 U.S. 47 (1919).
    • Tara Singh Gopi Chand v. State, AIR 1951 Punj 27 (India).
    • Tejender Pal Singh @ Timma v. State of Rajasthan, [2024:RJ-JD:34845] (Raj. HC Dec. 16, 2024).
  4. Statutes Referred
    • Bharatiya Nyaya Sanhita, 2023, No. 45, Acts of Parliament, 2023 (India).
    • INDIA CONST.
    • Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India).
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