Section 124A should stay

It would be perilous to abolish it without analysing the empirical evidence on its implementation.

Written by ARVIND P. DATAR | Published:February 25, 2016 12:02 am
Indian flag, National flag, Tricolour, Flag insult, insult to Indian flag, National flag insulted, Surat, Gujarat, Republic day, 26 January The present section has stood the test of time and the courts have restricted its application to serious acts that incite violence or create a major law and order problem.

The immediate fallout of the recent arrest of Kanhaiya Kumar, an All India Students Federation leader and president of the JNU students’ union, was the demand to abolish Section 124A of the Indian Penal Code, 1860 (IPC) as being an abhorrent colonial legacy. The electronic and print media have reacted as if Kanhaiya Kumar has been convicted and punished under this section. The fact is that a complaint was lodged that alleges Kumar’s conduct was seditious. Does this justify a call for
the abolition of this provision? This article doesn’t discuss the correctness of the JNU arrests as the matter is in court; it only
submits that there’s a strong case to retain Section 124A.

Chapter Six of the IPC is titled “Offences against the state” and originally consisted of Sections 121-130, which included the offences of waging war against the government of India and, among other things, collecting arms with the intention of waging such war. Interestingly, Section 124A was Section 113 of Macaulay’s Draft Penal Code of 1837-39 but was inexplicably omitted when the IPC was enacted in 1860. Section 124A was inserted in 1870 by an amendment introduced by Sir James Stephen.

The section, in its original form, was invoked in the celebrated case of Queen Empress vs Bal Gangadhar Tilak in 1897. Soon thereafter, the section was redrafted and it now reads: “124A. Sedition. — Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into 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.

Explanation 1. The expression ‘disaffection’ includes disloyalty and all feelings of enmity.

Explanation 2. Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without, exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3. Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.”

The Federal Court, in Niharendu Dutt Majumdar vs The King Emperor (1942), understood the dangers of misusing this section and made it clear that the section could not be used to stifle criticism. Interestingly, this decision was rendered in 1942 and at the height of World War II. Sir Maurice Gwyer observed that the use of violent, frothy and irresponsible language in a speech cannot be termed as sedition. He said: “There is an English saying that hard words break no bones; and the wisdom of common law has long refused to regard as actionable any words which, though strictly and literally defamatory, would be regarded by reasonable men as no more than mere vulgar abuse. Abusive language, even when used about a Government, is not necessarily sedition and there are certain words and phrases which have so long become the stock-in-trade of the demagogue as almost to have lost all real meaning”.

This sensible interpretation was reversed by the Privy Council in 1947 (King Emperor vs Sadashiv Narayan Bhalerao), which adopted the narrow view taken by Justice Strachey in the Tilak trial. Mercifully, in 1962, the Supreme Court restored
the view of the Federal Court while expressly holding that Section 124A was not violative of the fundamental right to free speech and expression under Article 19(1)(a).

This section would apply only to those activities involving incitement to violence or intention to create public disorder or cause disturbance of public order (Kedar Nath Singh vs State of Bihar).

The day after the assassination of Indira Gandhi, two persons raised slogans of “Khalistan zindabad” and “Raj karega Khalsa”. The Supreme Court acquitted the accused, observing that the raising of some slogans a few times, which did not evoke any response and did not create any law and order problem, did not attract Section 124A. The court rightly observed that sometimes the arrest of individuals, rather than the slogans shouted, could lead to tension and a law and order problem and cautioned that over-sensitiveness could be counter-productive. Indeed, the explanations to Section 124A make it clear that criticism or disapproval of actions of the government do not amount to sedition.

The Law Commission of India had undertaken a careful re-examination of Section 124A. In its 42nd report, published in 1971, it wanted the section to be extended to include disaffection towards the Constitution of India, Parliament and state legislatures and the administration of justice. It also wanted the punishment to be reduced to a maximum of seven years. While the sentence can be restricted to seven years, there is no reason to expand the ambit of the definition. The present section has stood the test of time and the courts have restricted its application to serious acts that incite violence or create a major law and order problem.

Indeed, the call for its abolition may be incorrect. There is no data on the number of complaints that have been filed under this section in different states. What were the seditious utterances or activities? How many persons have been convicted? Without an analysis of the empirical evidence on the implementation of this section, it would be perilous to abolish it as an anachronistic colonial provision.

We cannot forget that dozens of districts in different states face a Maoist insurgency and rebel groups virtually run a parallel administration. These groups openly advocate the overthrow of the state government by revolution. Against the backdrop of this stark reality, the abolition of Section 124A would be ill-advised merely because it has been wrongly invoked in some highly publicised cases.

The writer is a senior advocate

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  1. A
    arjun r
    Feb 25, 2016 at 1:19 am
    Court observation of pro khalistan slogan is funny.. How can police wait for arrest ,till the time it creates violence??
    1. M
      manish choudhary
      Feb 25, 2016 at 4:27 am
      kudos to writer, very well articulated 10/10
      1. A
        Feb 24, 2016 at 10:56 pm
        No point in telling truth. Those who are lying knew it. Kanhaiya,Khaled,Anirban called Supreme Court as killer and if this abuse is allowed I am who was respecting Supreme Court and judiciary all these years. Now Modi should break law daily because he can amend the very law that convict him. Next time if I caught crossing red light I will protest to take red light forward .
        1. M
          Manian K
          Feb 25, 2016 at 10:30 am
          1. M
            Murali Karnam
            Feb 25, 2016 at 3:47 am
            512 cases have been slapped under 124A in 2014 and I am sure the conviction would be less than 5% as it is extremely difficult to prove them. The section is just meant for haring the political dissenters. Not a single case under this section can be proved if the accused can really hire good lawyers. The author should have checked the data of cases and how many were arrested under this. The data is available in NCRB.
            1. H
              Feb 25, 2016 at 4:50 pm
              We shall retain what is good for India, that too the period of time we are facing anti national activities by the group of political parties.
              1. N
                Nabakrishna Hazarika
                Feb 25, 2016 at 3:21 am
                By that logic if a person in a fit of rage says he will kill someone , he should be arrested for murder instead of waiting for the murder to happen
                1. P
                  Feb 24, 2016 at 9:05 pm
                  Please slap liberals next time you see them in court and claim it as freedom of expression of your dislike on their liking of antinational activities... They like quotes so please quote third law of thermodynamics... And a brief on quantum entanglement to describe that our destiny is entangled with their hence the slap.. See if you can do it to shanti bhushN..
                  1. S
                    Feb 25, 2016 at 11:37 am
                    Well Said!
                    1. S
                      surendra s
                      Feb 25, 2016 at 2:35 am
                      The opposition MP's asking for removal of sedition law must think twice. Imagine a terrorist organisation taking out a morcha and shouting slogans against india and the government! They are acting irresponsibly.
                      1. A
                        A.s. Malhotra
                        Feb 25, 2016 at 1:18 pm
                        The author nicely depicted launching of Section 124A of IPC by way of historically since inception of 1860 during Colonial rule in India and its amendments after Independence by Indian Government within consonance of Indian Consution and by citation of cases on "Sedition". No doubt, India is one of most democratic and secular country across the World and State and Centre Governments are formed by elected by the citizens of India as voters. It is formore duty of these governments should take action through its machinery so as the prestige, integrity, unity and peace be maintained as per law and order. Last but not the least, the respect, image and sanctify of our Country "Mother India" should not be tarnished by peoples through anti-national, anti-patriotic, anti-secularism activities and are responsible for causing chaos, demostrations and agitations resulting not only loss to public property and lives of helpless and innocents, but also hurts the sentiments of majority of citizens of India. Overall, being a citizens of India, creating and promoting nefarious activities for down sizing image of India in the eyes of other countries. Therefore, Section 124A must be stand in penal code as well as other suitable meadures be adopted to avoid occuring of such activities as evident in JNU episode. Rest depends upon criminal-justice sysyem ofcour country, how it decide "sedition" against the accused students of JNU.
                        1. T
                          T.V. SIVAKUMARAN
                          Feb 25, 2016 at 9:17 am
                          Our Supreme court , media and liberals are of the opinion that merely shouting death to the nation, its Consution need not be taken seriously, and we should wait and encourage these malcontents to take up arms and grenades and bump up off some innocent citizens. Only then we should wake up and take cognisance of their misbehaviour and clap them , may be for a few years. State govts. like Tamilnadu will also unanimously politicise such offences and release them from jail for 'good behaviour'. Mera Bharat Mahan!!!
                          1. U
                            Feb 25, 2016 at 12:26 am
                            Very good one.😀
                            1. I
                              Feb 25, 2016 at 11:42 pm
                              Putin and China doing much better to crush "anti-nationals". Our govt. doesn't want to remain behind.
                              1. C
                                central gyan
                                Feb 25, 2016 at 5:10 pm
                                124A must be used with caution, as it could work a tool for party in power. A very good article throwing a lot of light in today's scenario.
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