Discuss Sedition.

The Colonial Origin of Sedition: Section 124A IPC

The law of sedition was introduced into the Indian Penal Code by an amendment in 1870 — notably, it was absent from the original Penal Code drafted by Lord Macaulay in 1860. It was added, as every honest account must acknowledge, as an instrument of colonial repression — to muzzle the growing voices of Indian political thought that were beginning to challenge British authority. Section 124A IPC reads as follows:

"Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred 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."

Three Explanations followed the section. Explanation 1 declared that disaffection includes disloyalty and all feelings of enmity. Explanations 2 and 3 clarified, critically, that comments expressing disapprobation of government measures, with a view to their alteration by lawful means, without exciting hatred, contempt or disaffection, do not constitute an offence.

The Essential Ingredients

To constitute the offence of sedition under Section 124A IPC, the following ingredients must be established:

• An act done by words, spoken or written, or by signs, or by visible representations

• That the act brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection, towards the Government established by law in India

• The act must be intentional

The word "Government established by law" is important. The section protects the government as an institution — the enduring constitutional framework of governance — and not the party or politicians who happen to be in power at a given time. As the courts have consistently held, criticism of the persons exercising governmental power is not sedition; it is the subversion of the institution of government that the law targets.

The phrase "disaffection" became the most litigated word in the entire provision. In Queen Empress v. Jogendra Chunder Bose (ILR 19 Cal 35) — the famous Bangabasi case — Sir Comer Petheram CJ explained it with precision: "Disaffection means a feeling contrary to affection, in other words, dislike or hatred... If a person uses words calculated to create in the minds of the persons to whom they are addressed a disposition not to obey the lawful authority of the Government, or to subvert or resist that authority, if and when occasion should arise, and if he does so with the intention of creating such disposition, he will be guilty of attempting to excite disaffection."

The Great Prosecutions: Tilak and Gandhi

The law of sedition earned its darkest reputation through the prosecutions of two of India's most distinguished public figures, and no account of sedition is complete without them.

In Queen Empress v. Bal Gangadhar Tilak (ILR 22 Bom 112), the Bombay High Court held that Tilak's writings in the Kesari and other publications, which vehemently attacked British rule and called upon Indians to resist, constituted sedition. Justice Strachey laid down the broad rule that the amount or intensity of the disaffection is immaterial — any excitation of feelings of disaffection, great or small, is sufficient to attract the provision. This extraordinarily wide reading effectively made any spirited criticism of colonial rule a criminal act.

Tilak was prosecuted twice under Section 124A — once in 1897 and again in 1908 — and sentenced to transportation for 18 months and then to six years' simple imprisonment respectively. The rigour of these sentences did not suppress nationalist thought; if anything, they inflamed it.

Then came Emperor v. Mohandas Karamchand Gandhi (Sessions Case No. 45 of 1922, Ahmedabad). Mahatma Gandhi, charged with sedition for articles published in Young India — including the celebrated pieces "Tampering with Loyalty", "The Puzzle and its Solution", and "Shaking the Manes" — chose not to contest the charge. He pleaded guilty and explained in a written statement why he had been compelled to promote disaffection against the Government established by law in British India. The Sessions Judge, Mr. Broomfield, in a remarkable address, acknowledged that Gandhi was "a man of high ideals and of noble and even saintly life" but sentenced him to six years' simple imprisonment — the same sentence as had been imposed on Tilak. Gandhi was released after nearly two years on grounds of health. The passage of this judgment stands as perhaps the most extraordinary moment in the history of sedition law in India: a colonial judge imposing a colonial sentence on the man who would, within a generation, break the very empire that had enacted the law.

The Conflicting Judicial Approaches: Tilak vs. Niharendu

As Indian courts developed the law, two sharply divergent interpretive traditions emerged regarding the essential character of the offence.

The first tradition, traceable to Tilak's case, held that sedition is committed as soon as feelings of disaffection, hatred or contempt toward the Government are excited or attempted to be excited — irrespective of whether public disorder results or is likely to result. Under this view, the subjective mental state of disloyalty in the listener, once incited, is itself the mischief the law seeks to prevent.

The second tradition, articulated by Sir Maurice Gwyer CJ in Niharendu Majumdar's case (arising under the Defence of India Rules but in pari materia with Section 124A), took a more liberal position: that public disorder, or the reasonable apprehension or likelihood of public disorder, is the gist of the offence. This brought Indian sedition law into alignment with the English common law approach, and was followed by the Bombay, Calcutta, Allahabad and Lahore High Courts.

The Privy Council in KE v. Sadashiv Narayan (AIR 1947 PC 82) firmly disapproved of the liberal approach and affirmed the strict Tilak-era rule. This remained the law at the time of Indian independence.

The Constitutional Challenge: Is Section 124A Valid?

When the Constitution of India came into force in 1950 guaranteeing freedom of speech and expression under Article 19(1)(a), Section 124A immediately came under attack as an unreasonable restriction on that freedom. The Punjab High Court in Tara Singh v. State of Punjab (AIR 1951 EP 27) struck it down as unconstitutional, holding that a law of sedition, though necessary during foreign rule, had become inappropriate in a sovereign democratic republic. However, the First Constitutional Amendment Act of 1951 added the words "in the interest of public order" to Article 19(2), and the constitutionality debate shifted accordingly.

The definitive resolution came from the Supreme Court in the landmark judgment of Kedar Nath Singh v. State of Bihar (AIR 1962 SC 955). The Court faced the question squarely: can Section 124A coexist with Article 19(1)(a)? The Supreme Court, in an act of constitutional interpretation that has since been both celebrated and criticised, held that Section 124A is constitutionally valid, but only when read and applied narrowly. The Court drew a critical distinction that became the cornerstone of modern sedition law in India:

• Acts involving incitement to violence, or having the tendency to create public disorder, constitute sedition and are punishable under Section 124A.

• Strong words of disapproval or criticism of government policy and actions, however vehement or vituperative, do not constitute sedition unless they have the tendency to excite public disorder or incite violence.

The Court held that the three Explanations to Section 124A — particularly Explanations 2 and 3 — save the section from unconstitutionality, because they carve out a wide and legitimate space for criticism, disapproval, and opposition by lawful means. The government established by law is the symbol of the state, and its stability is essential — but criticism of it, short of incitement to disorder, is not sedition.

The Kedar Nath ruling read a limiting principle into Section 124A: the word "disaffection" in the section must be understood as confined to such disaffection as tends to public disorder by the use of actual violence or incitement to violence. This constitutional reading effectively narrowed the Tilak-era interpretation and brought Section 124A closer to the liberal standard of Niharendu Majumdar.

What Is Protected, and What Is Punishable?

The interplay between the section and its Explanations creates the following framework, which every practitioner and student must clearly understand:

Punishable under Section 124A (IPC):

• Exciting or attempting to excite feelings of hatred, contempt, or disaffection toward the Government established by law, where such excitement has a tendency to cause public disorder or violence

• Speeches or writings that call upon people to resist or subvert the Government by force

• Writings or expressions that promote armed insurrection or rebellion

Not punishable under Section 124A (IPC):

• Comments expressing disapproval of government policies or administrative measures, however forcefully expressed, where the purpose is to obtain their alteration by lawful means

• Criticism, however harsh or contemptuous, of government decisions, legislative measures, or executive actions

• Political opposition, dissent, or demands for change through democratic processes

The key is not the strength of the criticism but its tendency. Strong language expressing disapproval of government policy is constitutionally protected speech. Language that tends to incite the listener to violence or public disorder is sedition.

The BNS Transformation: From Sedition to Section 152

The Bharatiya Nyaya Sanhita, 2023 — which came into force on 1 July 2024 — made a momentous change. Section 124A of the IPC has been omitted. In its place stands Section 152 BNS, which represents a significant reconceptualisation of the offence. The essence of the offence has shifted, as the commentary to the section aptly captures, from Rajdroh — offences against the sovereign — to Deshdroh — offences against the nation itself.

Section 152 BNS reads:

"Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial means, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years, and shall also be liable to fine."

The Explanation to Section 152 replicates the protection established under the old Explanations 2 and 3 to Section 124A: "Comments expressing disapprobation of the measures, or administrative or other action of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite the activities referred to in this section do not constitute an offence under this section."

Key Differences Between Section 124A IPC and Section 152 BNS

The transformation is significant and deserves careful attention:

The removal of the term "disaffection" — which had been so heavily abused and litigated — is significant. So is the explicit inclusion of electronic communication and financial means as modes of commission, reflecting the realities of contemporary threats to national integrity. The requirement that the act be done purposely or knowingly explicitly imports a mens rea standard that the old provision lacked.

The offence has moved from being one against the Government (which critics rightly noted could be misused against political opposition) to one against India — specifically against its sovereignty, unity, and territorial integrity. This is philosophically a more defensible foundation, though whether the new section will be applied with greater restraint than the old one remains a question that only judicial practice over the coming years will answer.

The Continuing Importance of Kedar Nath

Even with Section 124A omitted and Section 152 BNS in force, the principles laid down in Kedar Nath Singh retain their enduring importance. The constitutional guarantee of free speech under Article 19(1)(a) has not changed. The Explanation to Section 152 continues to protect legitimate criticism and political dissent. The courts will undoubtedly be called upon to apply the Kedar Nath limiting principle — or a version of it — to Section 152 as well: that no act of speaking, writing, or expressing opinion, however critical or vigorous, can attract the provision unless it tends toward actual secession, violence, armed rebellion, or subversive activity against the integrity of India. Criticism of the government is not deshdroh, just as it was never truly rajdroh in the eyes of the law that Mahatma Gandhi himself helped, through his sacrifice, to liberate.

The law of sedition in India thus comes full circle: born as an instrument of colonial control, challenged by the very nationalists it sought to silence, constitutionally limited by the Supreme Court to its narrowest defensible core, and finally replaced by a provision that — at least in its text — places the nation rather than its government at the centre of protection.