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